Legal Opinion

Childress v. Smith

Texas Supreme Court

Decided April 26, 1897PublishedCited by 31 opinions

Error to Court of Civil Appeals, Fourth District, in an appeal from Dallas County. It is not sufficient excuse that the architect may have stated that it was useless to give a certificate, because the contractor had no monies to pay. It is only where the architect fraudulently and arbitrarily refuses to give a certificate, that the contractor will be authorized to sue without first procuring a certificate and complying with the terms of the contract.

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Error to Court of Civil Appeals, Fourth District, in an appeal from Dallas County. It is not sufficient excuse that the architect may have stated that it was useless to give a certificate, because the contractor had no monies to pay. It is only where the architect fraudulently and arbitrarily refuses to give a certificate, that the contractor will be authorized to sue without first procuring a certificate and complying with the terms of the contract. Where the evidence shows that the contractor was at fault in failing to carry out the terms of the contract, he is not entitled to recover under…

1Opinion of the Court

In this case both the appellant and the appellees in the Court of Civil Appeals have applied for a writ of error. In appellant's application there are ten propositions submitted, which are presumably intended as assignments of error. The fourth, fifth and ninth, it seems to us are properly such; but the others are mere statements of propositions of law, and contain no direct averment that the Court of Civil Appeals erred in any ruling. As an example we copy the first:

"Where the petition shows that plaintiff is in a suit to foreclose a mechanic's lien, has only placed $1200.00 worth of work…

2Cited by31 opinions

  1. Colbert v. Dallas Joint Stock Land BankTexas Supreme Court · 1937
  2. Davidson v. ClearmanTexas Supreme Court · 1965
  3. Murphy v. WilliamsTexas Supreme Court · 1910
  4. Morgan v. YoungCourt of Appeals of Texas · 1947
  5. Paschall v. Pioneer Savings & Loan Co.Court of Appeals of Texas · 1898

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