Tiner v. Towle Place Development Co.

258 S.W.2d 872, 1953 Tex. App. LEXIS 1821
CourtCourt of Appeals of Texas
DecidedMay 15, 1953
DocketNo. 3002
StatusPublished

This text of 258 S.W.2d 872 (Tiner v. Towle Place Development Co.) 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
Tiner v. Towle Place Development Co., 258 S.W.2d 872, 1953 Tex. App. LEXIS 1821 (Tex. Ct. App. 1953).

Opinion

CODLINGS, Justice.

This suit was brought by R. H. Tiner, Sr., and R. H. Tiner, Jr., doing business as Safeway Plumbing Company, against Towle Place Development Company, a corporation, upon an alleged implied contract or in the alternative, in quantum meruit for the sum of $6,636.54 alleged to be the value of extra work and materials furnished by plaintiffs during the performance of a plumbing contract entered into between the parties on August 14, 1950. Recovery was also sought for $1,839.08 alleged to be due under the terms of the contract but such amount was tendered and paid by the de[873]*873velopment company in open court and is not here in controversy. ’Trial was before the court without a jury and judgment rendered for defendant development Company, denying plaintiffs recovery’ on their claim. Plaintiffs have brought this appeal.

The basis of appellant’s claim for extra work and material was a provision in the contract that water and sewer, connections should be made “in parkway”. It was necessary in most instances to connect water, sewer and gas mains in the alleys at the back of the lots. Appellants urge that by reason of the change in location of the utility mains from the “parkway” in front of the lots to the back.of the lots, extra work not contemplated or included in the contract was required to be done. The evidente shows -that the parties entered into the contract on August 14, 1-950, whereby appellants agreed to do the plumbing on 100 houses in Towle Place Addition to the City of Snyder. By the terms of the contract, appellants were to receive $593.38 for installation of each unit with sink and bath fixtures back-to-back and $627.21 for each unit with sink and bath separate. It was provided in the contract that the plumbing contractor should perform the details of the work contemplated in : accordance with plans, specifications and instructions' set forth therein and furnish and install designated items and material for each unit. Listed among the items were the following:

“7. Run and connect water to meter in parkway..
* * * * * *
“9. Connect to sewer lateral in parkway.”

There was no written provision in the contract as to where connections should be made to gas mains:

The following findings of fact and conclusions of law, among others, were made and filed by the court:

“Findings of Fact
“1. The Court finds that plaintiff and defendant entered into the contract providing for the installation of plumbing fixtures and the making of connections with water, gas and sewer lines as appears frorn Plaintiffs Exhibit No. 1 in the Statement of Facts.
“2. I find that plans and specifications for the proposed development of Towle Place were furnished to plaintiff ' by defendant and at all times during the construction work under the contract the plans and specifications for the plumbing and facilities to be installed were available to plaintiff.
, ⅜ >fc ⅝ * ⅜ *
“6. I further find that plaintiff undertook to support his allegations as to the amount of extra work done by showing an average of additional distances, that he was required to go in making the connections in the alleys instead of in the parkways, and did not attempt to show the exact number of feet additional required on each house in which plaintiff installed the plumbing and made the connections.
“Conclusions of Law
“4. The Court further finds as a matter of law that the evidence is too indefinite and uncertain ■ to authorize • recovery for the extra work claimed.”

It is urged by appellants that the court erred'in holding the evidence too indefinite and uncertain to authorize recovery for the extra charge claimed. We have'endeavored to make a careful examination of the record and have reached the conclusion that the point must be overruled. The evidence is conflicting as to what plans and specifications were available to appellants at the time of the execution of the contract and were referred to by the contract. The plans which' appellants contend to be the ones referred to and to which they had access did not show the location of the houses on the lots, and, therefore, did' not show the amount of utility lines that appellants would be required to supply.' Such plans did not indicate the proposed location of the utility mains unless a dotted line about 7½ feet •from the back of the lots was intended for that purpose. No one testified that the line was so intended, but it was referred to by sortie witnesses as the utility easement. Assuming, without deciding, that a consideration of the terms of contract, together with the plans and specifications, obligated ap[874]*874pellants to connect the plumbing with mains located in the “parkways” except for the gas mains concerning which the contract made no provision, and that the installation of any moré feet of utility lines than was necessary to run such water and sewer lines from the houses to the “parkway” was extra work, for which appellants were entitled to additional compensation, there is still uncertainty as to how much compensation, if any, appellants would be entitled. If appellants are to recover for extra labor and material, it is incumbent on them to show that extra labor and materials were actually furnished. The evidence shows that the lots were of different lengths and appellants admit that in some instances, there was a saving of labor and material by connecting1 with utility lines in the back instead ’of in the front of the lots. Appellants di'd hot attempt to show the exact number of additional feet or amount of extra labor required on each house upon which they claimed additional compensation but undertook to establish the extra charge on the basis of-the average cost per foot for laying .utility lines computed from seven of the, first-twenty .houses, and .as best we can .understand, estimated the extra distances likewise, by. .average and comparison. Appellants, estimated that the average amount of utility lines per house that they would have been- required to install by connecting with mains in the “parkways” would have been 50 feet. The evidence shows that this estimate was arrived at by adding 35 feet, the estimated distance from the front of the house to. the front of the lot, to 15 feet, the estimated average distance from the front pf the, house back to the “stack” where the utility lines were attached. The house plans are not in evidence but it is indicated that they varied in depth. There was also evidence to justify the conclusion that if utility li.nqs were started from the back of the house that in many instances it would be substantially further to the front of the lot than to. the back of the lot. The evidence, ⅛ our opinion, is also indefinite and not conclusive on the question of whether appellants were required to run utility lines ■only tp, the front property line or a few feet more out into .the “parkway” where the mains were located in the parkway, and whether appellants were required to lay such lines the entire distance to the back property line or only to the utility easement line which was 7½ feet nearer. The only evidence as to where the “stacks” were located was by appellant Tiner, who is an interested witness. He testified that

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Bluebook (online)
258 S.W.2d 872, 1953 Tex. App. LEXIS 1821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tiner-v-towle-place-development-co-texapp-1953.