C. H. Walton owned a business lot in Slaton, Texas. Jack Humphreys desired a building in which to carry on his business to be known as "Jack's 5 & 10 Cent Store," in Slaton, Texas. Walton and Humphreys entered into a contract whereby Humphreys was to build a building upon the lot owned by Walton at Humphreys' expense, said building not to cost less than $7,500. Humphreys was to lease said lot for a period of ten years at the rate of $20 per month and the building at the end of ten years was to belong to Walton. Humphreys did not have the money to construct the building, so he borrowed the money to construct the building from one Jesse Johnson. Humphreys was going to repay Johnson the money loaned to Humphreys for constructing the building at the rate of $130 per month, making the total to be paid monthly by Humphreys of $150. Walton was to have the privilege of buying the building after a certain time and if Walton would buy the building then Humphreys would pay Walton $150 per month instead of paying $20 for the lot, and the $130 to be paid to Johnson. In the meantime, Walton sold one-half interest in the lot in question to one Joe Teague. Humphreys employed M. D. Edwards and Haskell Edwards to construct the building in question upon what is known as a cost-plus basis. The building was constructed and accepted by Humphreys and he opened up his business in said building and had paid his first $130 to Johnson, when Walton and Teague immediately purchased the building and Johnson was paid from the purchase money and Walton and Teague received, as it was agreed, rent at the rate of $150 per month thereafter since Johnson had been paid. Humphreys had been occupying the building and paying Walton and Teague the $150 monthly rental for a period of about thirteen months when, during a rain storm, the roofing to said building caved in and the building and contents were greatly damaged.
Walton and Teague made some kind of an agreement with M. D. Edwards and Haskell Edwards to repair said building, and it is this agreement that is in question here. M. D. and Haskell Edwards repaired the building but were never paid for the same and they brought this suit against Walton and Teague to recover $2,872.47 as reasonable, necessary and proper sum for the rebuilding of said building, together with $750 attorneys' fees. Walton and Teague, securing permission of the trial court, made Continental Insurance Company of New York, New York, General Insurance Company of America of Seattle, Washington, Jesse Johnson and Jack Humphreys as third party defendants. The trial court granted the request for severance of both insurance companies, and any action as to them is not involved herein.
Walton and Teague by their second amended original answer and first amended cross-action denied owing M. D. and Haskell Edwards any sum of money but pleaded in the alternative, should it be determined that the plaintiffs should recover for the repairs of said building, that they have judgment over and against said cross defendants, Jack Humphreys and Jesse Johnson, and for general and special relief. Walton and Teague pleaded:
"that the Plaintiffs were immediately contacted after the collapse of the roof, whereupon the said Defendants, acting by and through the Defendant, M. D. Edwards, advised that they had been concerned about the construction of the roof, and that they stood behind their work, and that they wished to uphold their reputation as builders in the community, and that if the collapse of the roof was due to structural failure, they would rebuild and repair it at their own expense and cost; that if the collapse of the roof be due to a cause covered by insurance on the said building, then they would be paid the amount of the insurance coverage for rebuilding the same; otherwise, there would be no cost to the Defendants for repairing and rebuilding of the same;" (we are considering the reference made to the Edwards' boys as defendants instead of plaintiffs as a typographical error)
The case was tried to a jury but after all the evidence was introduced, by agreement of the parties, the jury was dismissed, and the case was submitted to the court. Judgment was granted by the court that the plaintiffs take nothing by their suit, that the defendants, as cross-plaintiffs, take nothing by reason of their cross-action against the cross-defendants, and that defendants and cross-defendants go hence with their costs. From this judgment the plaintiffs perfected this appeal.
The trial judge made and filed his Findings of Fact and Conclusions of Law as follows:
"I find that the Plaintiffs, M. D. and Haskell Edwards were in the buildings business in Slaton, Texas at all times pertinent to this Law suit.
"I find that the Plaintiffs, M. D. and Haskell Edwards originally constructed the building in question as building contractors and completed the same in the latter part of August, 1952.
"I find that the roof on the building in question collapsed during a rain storm on or about the ...