Cameo Construction Co. v. Campbell

OPINION ON MOTION FOR REHEARING

The Appellees have filed a motion for rehearing. In the first point of error, they assert that we erred in allowing Cameo Construction Company an offset in the amount of $15,544.74. The Appellees alleged in their amended pleadings that they had paid subcontractors and materialmen the sum of $65,188.48 for work done or materials supplied under their contract with Cameo Construction Company. The final judgment provided that Cameo take nothing by its counterclaim against Mr. and Mrs. Campbell. Thus, the trial court found that Mr. and Mrs. Campbell had no further obligation under the contract to make payments to Cameo and impliedly found that the Campbells had paid all or more than the total sum provided for in the construction contract.

We conclude that by making payment to the subcontractors and the materi-*14almen, Mr. and Mrs. Campbell would be entitled to a credit for the sums paid toward the total amount owed to Cameo Construction Company. Kocher v. Mayberry, 15 Tex.Civ.App. 342, 39 S.W. 604 (1897, no writ). The payments made to Cameo and to the subcontractors and materialmen exceed the contract price for the house. Therefore, we grant the Appellees’ Point of Error No. One and affirm that part of the judgment which provides that Mr. and Mrs. Campbell have and recover from Cameo Construction Company the sum of $25,-400.00.

The Appellees’ second and third points of error have been considered and they are overruled.