Brown v. Payne-Ladewig, Inc.

568 S.W.2d 159, 1978 Tex. App. LEXIS 3330
CourtCourt of Appeals of Texas
DecidedMay 24, 1978
DocketNo. 19500
StatusPublished
Cited by1 cases

This text of 568 S.W.2d 159 (Brown v. Payne-Ladewig, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Payne-Ladewig, Inc., 568 S.W.2d 159, 1978 Tex. App. LEXIS 3330 (Tex. Ct. App. 1978).

Opinion

GUITTARD, Chief Justice.

In this suit for breach of contract, the verdict was favorable to plaintiff, but the trial court rendered judgment for defendant notwithstanding the verdict on the ground that the evidence shows as a matter of law that the contract was subject to a condition which was never met. We hold that the trial court erred in this respect. Accordingly, we reverse and remand with instructions to render judgment on the verdict.

Plaintiff Paul Brown was a heating and air-conditioning contractor who was preparing to bid on a subcontract for installation of air-conditioning and heating equipment in connection with the remodeling of a government family-housing project at Fort Hood, Texas. He approached defendant Payne-Ladewig, Inc., a supplier of such equipment. Defendant obtained a copy of the specifications from the United States Army Corps of Engineers, and defendant’s estimator, Tom Keegan, gave Brown a quotation on the telephone of $53,569 for supplying the equipment and the price. Brown used this quotation in making his bid to the general contractor, who, in turn, used Brown’s bid to make a successful bid to the Corps of Engineers. When the general contractor’s bid was accepted, Brown notified Keegan and instructed Keegan to go ahead and prepare data on the equipment for submission to the Corps of Engineers for approval. After two unsuccessful attempts to obtain approval of Payne-Ladewig’s equipment, Brown obtained equipment from another supplier at an increased price and brought this suit to recover the difference, alleging that Payne-Ladewig had failed to supply the equipment required by the specifications. Payne-Ladewig denied that a binding contract was made and alleged that [160]*160its written quotation was conditioned upon approval by the Corps of Engineers and placement of an order by Brown for the equipment, that final approval by the Corps of Engineers was never obtained, and that Payne-Ladewig never received an order from Brown.

In response to special issues, the jury found (1) that plaintiff and defendant entered into an agreement whereby plaintiff agreed to purchase and defendant agreed to sell the items of equipment listed at the prices stated in defendant’s quotation, (2) that defendant failed to supply those items in accordance with the terms of their agreement by reason of the fault, act, or omission of the defendant, and (3) that the amount of plaintiff’s damages resulting from defendant’s failure to comply with the agreement was $27,853.

The defendant filed a motion for judgment in its favor notwithstanding the verdict, which the court granted. The only ground recited in the judgment for disregarding the verdict is that the court “is of the opinion and finds that as a matter of law performance by defendant Payne-La-dewig, Inc. was conditioned upon approval of the equipment by the United States Corps of Engineers.”

On this appeal, plaintiff contends that the trial court erred in this finding because no facts were presented to support it, or at least, that it was based on disputed facts which should have been submitted to a jury on a proper request. After a review of the evidence, we agree that existence of the alleged condition was not established as a matter of law.

The question of existence of a condition precedent must be determined in the light of the specifications for the job prepared by the Corps of Engineers, on which both parties, as well as the general contractor, made their bids. The plans specify one hundred and one units of air-conditioning and hearing equipment, of three different capacities, for housing units to be remodeled. The specifications require the general contractor to proceed as soon as practical after notice and, before commencement of installation of materials and equipment, to submit to the government representative for approval a complete schedule of materials and equipment proposed for installation. The specifications further provide that approval of materials will be based on the manufacturer’s published ratings, that those not in accordance with specifications will be rejected, and that no payment will be allowed for materials incorporated into the work if the required approvals have not been obtained. The general contractor is also required to submit shop drawings for approval before proceeding with any of the work.

The only provision in the contract documents for approval or disapproval of the contractor’s submittals with respect to materials and equipment is the authority of the Corps of Engineers to determine compliance or non-compliance with the plans and specifications. Defendant asserts that the specifications are loosely drawn and leave much for subjective determination by the engineers, but there is no evidence supporting this assertion. There is testimony that frequently several submittals are required before approval is secured, but, insofar as appears in this case, disapproval of the submittals was based on the engineers’ determination that the equipment described in the defendant’s submittals did not comply with the plans and specifications. When Brown was asked on cross-examination whether some of the specifications were vaguely drawn so that what might apparently meet the specifications might not meet the approval of the Corps of Engineers, he responded, “No, if you can prove that you can meet it, they will accept it.” There is no evidence to the contrary.

The testimony shows that in accordance with the requirements of the specifications concerning advance approval of materials and equipment, the practice was for the material supplier to provide its submittals concerning the equipment to the subcontractor, who passed them on to the general contractor, who, in turn, presented them to the Corps of Engineers for approval. If the Corps of Engineers disapproved any item or [161]*161required additional data, the matter was passed back down the line to the supplier, who then provided additional information in another submittal. Since the bids of the subcontractors and suppliers, like that of the general contractor, were based on the specifications, it is reasonable to construe such bids, when accepted, as obligating the bidders to furnish the information to be submitted by the general contractor for approval. Such a construction is supported by decisions holding that contracts that refer to specifications have the effect of incorporating the specifications into the contract. Tower Contracting Co. v. Flores, 157 Tex. 297, 302 S.W.2d 396, 398 (1957); Delhi Pipeline Corp. v. Lewis, Inc., 408 S.W.2d 295, 298 (Tex.Civ.App. — Corpus Christi 1966, no writ).

In this case, the evidence is clear that the parties dealt on the basis of the specifications and the procedure for approval of equipment prescribed in the specifications. Both parties had had long experience with government contracts of this kind. Defendant’s estimator, Tom Keegan, obtained a copy of the specifications before making his bid. He testified that the submittals were intended for the use of the Corps of Engineers to determine whether the equipment complied with the terms of the contract.

The principal controversy between the parties is whether defendant’s obligation to supply the equipment was conditioned upon approval of its submittals by the Corps of Engineers, or whether defendant had an obligation to furnish equipment that would comply with the specifications, as determined by the Corps of Engineers.

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Cite This Page — Counsel Stack

Bluebook (online)
568 S.W.2d 159, 1978 Tex. App. LEXIS 3330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-payne-ladewig-inc-texapp-1978.