Vance v. My Apartment Steak House of San Antonio, Inc.

I concur in the result of the majority. The facts and procedural history of the case at bar and Atkinson v. Jackson Bros., 270 S.W. 848, (Tex.Comm’n App.1925, holding approved) are similar. In Atkinson, suit was brought by a lumber company against the builder, Jackson Bros, and the owner, Atkinson, for the balance due on lumber and materials furnished for the construction of the Atkinson residence. Jackson Bros, filed a cross-action against Atkinson for the balance due on the construction contract. In response, Atkinson sought damages for various defects in the workmanship and material used…