Tower Contracting Company v. Flores

294 S.W.2d 266
CourtCourt of Appeals of Texas
DecidedOctober 4, 1956
Docket12987
StatusPublished
Cited by20 cases

This text of 294 S.W.2d 266 (Tower Contracting Company v. Flores) 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
Tower Contracting Company v. Flores, 294 S.W.2d 266 (Tex. Ct. App. 1956).

Opinion

GANNON, Justice.

Tower .Contracting Company, Inc., of Texas, the appellant, appeals from a money judgment rendered against it.in favor of appellee, Hunter Flore's, in amount of $21,-339.13 with interest- and costs, -being -the balance found to be due on the contract and for extras under, a certain..subcontract whereby-appellee bound himself to do certain - work for -appellant in. connection with a primary contract to which appellant .had bound itself. •- ■

The parties, both the plaintiff Fiores and the defendant Tower Contracting Company, Inc., of Texas, are in the general contracting business, Both bid on a contract to be awarded by the Corps of En *268 gineers of the United States Army for repair of the Colorado River Flood Gates on the Intracoastal Waterway in Mata-gorda 'County. The defendant was the successful bidder. However, upon the contract being awarded it,, the defendant sub-contracted a substantial part of the work to the plaintiff Flores.

The sub-contract is not as artfully drawn as might be, 'but in the light of the evidence- and the plans and 'specifications for the work prepared' by the Corps of Engineers 'governing the primary-contract, it may be followed without difficulty. ■ The writing appears upon three sheets of a purchase order form of defendant, each of which sheets bears the signatures of the parties. We reproduce the contract and attach it to this opinion as Exhibit A.

Following completion of all- the work required under the sub-contract, the parties fell in dispute in respect to the amount owing Flores by Tower Contracting Company, Inc.

The dispute between the parties, as it is presented here, arises principally under Items 4 and 7 of the sub-contract. < Flores furnished the bolts, nuts and galvanizing required by Item 4 of the contract, denominated: Removal and Reinstallation of Rotten Timber Fenders. However,, he claimed these to be extras and sought compensation therefor over and above the contract price for this item. In réspect tó Item 7 of the contract providing for the -fill — though the parties are not in dispute that the work required- thereby was plainly- ascertainable from the Technical Provisions of the primary contract, Section 1, -paragraph 1-04 and from the site plan No. 1/1, still Flores' claims as an extra compensation for some 10,248 cubic yards of compacted dirt required to complete the fill provided for under Item 7 because there was contained in the plans and specification inviting bids on the primary contract and in connection with the item of the fill, an estim'até 'of the Corps of Engineers -(evidently made from the site plan drawings and the Technical Provisions) that it would require 22,000 cubic yards of compacted dirt to complete the fill. Actually 32,248 cubic yards were required.

This estimate appears in the papers inviting bids on the primary contract, as follows:

“Description " ’ Estimated' ' Unit
Quantity
--Fill - •' 22,000. • C.Y.”

Plaintiff’s pleading, contains no, allegation of, fraud, accident, or mistake. There is no.-prayer for rescission of the contract. His suit is on the contract as drawn so far, as, under his construction, the contract covers the work done, and on express contracts for the extras; supplemented in respect to the extras alone, by a count in .quantum meruit.

The parties construed the contract as requiring the work on the fill to be completed by July 25, 1954. On July 8, 1954, while the work was in progress, the Area Engineer of the Corps o-f Engineers complained ini writing to Tower Contracting Company that in his opinion a diligent effort was not being made to prosecute the work in completing the fill. On the same day Tower Contracting 'Company wired Flores, cancelling his contract. The wire is as follows: “You are advised your contract-with us is cancelled this date by directive of the- corps of .engineers work to be Completed and backcharged tó your account.” In point of fact, the Corps of Engineers had not; as -it had the right to do, directed the cancellation of.’ the subcontract, but had only requested that additional or more suitable- equipment be employed in the -work of completing the fill. Two days later, on July' 10, 1954 — appellant in the meantime having sub-contracted the' completion • of the Work on the fill' to 'Hall & Redinger — Hall & Rediíig.er moved 'in its' equipment and proceeded on the' work *269 of completing the fill. However, Flores refused to recognize the cancellation of his contract as valid and he continued oil the job. The work was completed within the time limited under the contract by the combined work of Flores and Hall & Red-inger. It is Flores’s claim that he could have timely completed it alone had he been permitted to do so.

Tower Contracting Company,, by. its pleadings, cross-acted by way of offset for the amount it claimed- it had been .out on account of additional equipment put on the work by its second sub-contractor, Hall & Redinger, to wit: $10,219.93.' This cross-action and offset rested on' Tower’s contention that Flores was. proceeding about the work on the fill with insufficient dispatch to complete it.on time so as to avoid a $25 a day. penalty for-delay, provided for in the: primary contract, and that this, constituted a.breach of the contract by Flores. There was evidence from which the jury could have found that the under-estimate of 22,000 cubic yards of dirt required to complete the fill was discovered by Flores at or about the commencement of the work, or shortly thereafter; that the error was called to the attention of the Tower Contracting Company by Flores, and that at the time Flores was assured by Tower “that he would make it' right with us” — “that there would have to be an adjustment on that extra yardage.” It is undisputed that these statements were made after Flores bound himself to the sub-contract. Flores testified that his lump sum bid of $8,250 for fill was based on the erroneous estimate- of 22,000 cubic yards-of dirt required to complete it, or at the. rate of 37½ cents per cubic yard.

So far as is material here, the case was submitted to the jury on, the following special issues, which were answered as indicated-:

2.-“Do you find from a preponderance of the evidence that the' bolt's, huts and galvanizing furnished by Fibres in connection with Item 4 (Removal and Rein-stallation of Rotten Timber Fenders) were extras as that term is herein defined? 1
“Answer Yes or No.”
Answered “Yes”.
3. “Do you find from a preponderance of the evidence that the additional' 10,248 cubic yards of compacted dirt required to complete the fill under Item 7 (Fill) was an extra as that term is, herein defined ?
“Answer Yes or No.”
, Answered “Yes”.
4. -“'What' do you- find from a preponderance 'of the evidence to be' the reasonable valfie of furnishing the extra 10,24$ cubic yards of dirt, if you-have found it to be an'extra? ■ ' ■ :
“Answer by .stating the amount,, if. .any, in .dollars and.cepts.”. .
Answered “$3,843.00*’.' ■

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294 S.W.2d 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tower-contracting-company-v-flores-texapp-1956.