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Atkinson v. Jackson Bros. - 270 S.W. 848 (Tex. 1925)

Rule:

The equitable doctrine of substantial performance has been adopted in common-law actions in many states, and particularly in the adjustment of rights under building contracts. If the contractor has acted in good faith and has substantially performed, he will be allowed to recover notwithstanding slight deviations from the contract, but his recovery will be diminished by the amount necessary to compensate for the deficiency.

Facts:

The Leeper-Curd Lumber Company ("Leeper-Curd") fled an action in Texas state court against defendant Jackson Brothers ("Jackson") and defendants J.B. Atkinson and his wife to recover the sum of $ 1054.75, with interest, being the balance due for lumber and materials furnished for the construction of a residence on property belonging to Atkinson and his wife. It was alleged that Jackson had a contract with Atkinson and wife for the building of the residence. Jackson contracted with Leeper-Curd for lumber and materials to be used in the construction and agreed to pay for the lumber and materials. The parties agreed that Atkinson should make payments due to Jackson on their contract directly to Leeper-Curd for the mount due for the lumber. The lumber and materials were furnished in accordance with the contract and agreement. In addition to personal judgment, Leeper-Curd sought to foreclose a materialman's lien against the premises and residence. Jackson answered the suit by general demurrer and general denial and brought cross actions against Atkinson and wife. Atkinson and wife, on the other hand, denied the account sued upon, and claimed that the promise to pay Leeper-Curd furnished to Jackson was without consideration. The trial court rendered judgment in favor of Leeper-Curd against Jackson for $ 1110.20, with interest at 6 percent; judgment for Jackson against Atkinson for $ 821.84, the balance on the contract price for the house, plus $ 573.00 for extras, making a total of $ 1394.84, with interest at 6 percent; Leeper-Curd and Jackson were denied a lien against the house and premises; no party could recover as against Mrs. Atkinson. On appeal, the decision was affirmed. Atkinson appealed, arguing, among other things, that both the trial and appellate courts adopted a wrong rule for determining his damages, and in arriving at the compensation due Jackson, it being shown that there was only a substantial performance of the building contract.

Issue:

Was the judgment proper?

Answer:

Yes, in part.

Conclusion:

The appellate court's judgment was affirmed as to the recovery by Leeper-Curd against Jackson, and was also affirmed in so far as it denied any of the parties a recovery against Mrs. Atkinson. However, the court reversed and remanded the judgment in favor of Jackson as against Atkinson. The court ruled that, whether viewed from the standpoint of Jackson to recover on the contract, or from the standpoint of Atkinson's right to recover damages upon his action against Jackson, it was manifest that there was error in permitting Jackson a recovery of the full agreed price, there being only a substantial performance of the contract by it, without allowing deductions in favor of Atkinson. Moreover, it was error to place the burden upon Atkinson to show what deductions should have been allowed. The court noted that in the event of another trial on remand, it was advisable that the trial court instruct the jury as to the meaning of "substantial performance."

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