Warren v. Denison

563 S.W.2d 299, 1978 Tex. App. LEXIS 2836
CourtCourt of Appeals of Texas
DecidedJanuary 23, 1978
Docket8825
StatusPublished
Cited by19 cases

This text of 563 S.W.2d 299 (Warren v. Denison) 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
Warren v. Denison, 563 S.W.2d 299, 1978 Tex. App. LEXIS 2836 (Tex. Ct. App. 1978).

Opinions

DODSON, Justice.

In this case the appellants are R. L. Warren and wife Leta Warren. The appellee is H. G. Denison d/b/a Denison Contractors. In the trial court Denison recovered judgment against the Warrens in the amount of $71,540.96. We reform the judgment and as reformed the same is affirmed.

The dispute arose out of a transaction, wherein the Warrens contracted with Deni-son, a building contractor, for the construction of a house on the Warrens’ property in Tahoka, Lynn County, Texas. The transaction was initiated by the parties executing written instruments. They made and entered into a contract for the construction of the house, and signed a note in payment for [302]*302the construction in the original principal sum of $73,400 with interest at the rate of ten per cent per annum from maturity. The note further provided for a reasonable attorney’s fee “if this note is placed in the hands of an attorney for collection, or collected by suit.” The promissory note was secured by a mechanics and materialmans lien and a deed of trust lien on the property on which the house was to be constructed.

After Denison constructed the house, the parties were unable to consummate the transaction. The matters in controversy were unresolved by negotiation between the parties, and Denison initiated foreclosure proceedings by exercising the power of sale provided for in the deed of trust.

The Warrens brought suit against Deni-son for a declaratory judgment, seeking in part an adjudication of no “further obligation to perform any condition contained” in the construction contract, alleging that Denison had not substantially performed the same. Also, the Warrens sought various items of damages for loss of use of the property, loss of loan commitment at a more favorable interest rate, diminished market value of the property for poor workmanship, and attorney’s fees all in the total amount of $31,588.25. Further, the Warrens sought an injunction to restrain J. B. Cotten, Jr., the substitute trustee, from proceeding with foreclosure under the deed of trust.

Denison answered and filed his cross-action alleging substantial performance under the construction contract, and sought to recover from the Warrens the unpaid balance of $48,400 due on the construction contract and the promissory note, interest on that sum at the rate of ten per cent per annum from December 22, 1974, a reasonable attorney’s fee of $12,100, and an unpaid balance of $9,643.57 alleged due and owing for the reasonable value of “additions and modifications not set forth in the plans and specifications.” In his cross-action, Denison further sought damages for additional interest paid by him on his interim financing arrangement in the amount of $8,740 as of July 22, 1976, plus $14.84 per day for said interest since July 22,1976. He also sought to recover for insurance he carried on said residence from December 17, 1974, in the amount of $1,423 as of July 22, 1976, plus $2.42 per day for such insurance since July 22, 1976, utilities in the amount of $793.26, and $75,000 for “embarrassment, harrassment [sic ], loss of business opportunity and unfounded claims of structural damage and poor workmanship, which has damaged his business reputation,” and the further claim of $75,000 for exemplary or punitive damages. Denison’s prayer was for a total of “$231,099.83, plus the additional interest and insurance which has accrued since July 22, 1976 . . .his costs of court herein expended, and such other and further relief as he may show himself justly entitled, either at law or in equity.”

The case was tried before a jury. At the close of the testimony, the court submitted 31 special issues. After the jury returned its answers to the special issues, the court entered judgment in favor of Denison, for, among other things, the amount of $71,-540.96, together with ten per cent per an-num interest thereon until paid. From this judgment the Warrens appeal to this court and bring nine points of error.

In the Warrens’ first point of error they claim a fatal conflict in the jury’s answers to Special Issues Nos. 23 and 2. These special issues and their respective answers are as follows: •

SPECIAL ISSUE NO. 23
Do you find from a preponderance of the evidence that on or about February 17, 1975, H. G. Denison had made substantial compliance with the terms of the contract between the parties hereto of May 17, 1974?
Answer: “He had made substantial compliance,” or “He had not made substantial compliance.”
The jury answered: “He had made substantial compliance.”
SPECIAL ISSUE NO. 2
Do you find from a preponderance of the evidence that the dwelling in question was not built and completed by Denison in a good and workmanlike manner, [303]*303and/or of good substantial materials, and in accordance with the plans and specifications, the mechanic’s and materialman’s lien contract, and/or the construction contract agreed upon between the parties, at the time it was retaken by the Warrens?
Answer “It was” or “It was not,” as you may find.
The jury answered: “It was not.”

In Special Issue No. 23, the jury found Denison had “made substantial compliance” with the contract between the parties and, in Special Issue No. 2, the Warrens contend that the jury found: (a) that Deni-son did not build and complete the house in a “workmanlike” manner; (b) that he did not complete the house of “good substantial material”; and (c) that he did not build and complete the house “in accordance with the construction contracts.” The Warrens contend that the terms “substantial performance,” “workmanlike manner,” “good substantial material” and “in accordance with the construction contracts” as used in the charge are legally synonymous and result in a fatal conflict in the jury’s findings on such issue, which is sufficient to prevent Denison from recovering in this case under any theory alleged by him. We do not agree. We conclude there is no fatal conflict between the jury’s findings on the two issues.

The Texas courts have applied the doctrine of “substantial performance” to construction contracts since 1891. Linch v. Paris Lumber & Grain Elevator Co., 80 Tex. 23, 15 S.W. 208 (1891). This doctrine recognizes that literal performance of each and every particular of such contracts is virtually impossible. Rather than require perfect performance of every particular, substantial performance is regarded as full performance in allowing the builder to recover on the contract. However, in such instances, the measure of recovery is the contract price less the cost of completing or repairing the building to contract specifications. Atkinson v. Jackson Bros., 270 S.W. 848 (Tex.Com.App.1925, holding approved); Graves v. Allert & Fuess, 104 Tex. 614, 142 S.W. 869 (1912); Perryman v. Sims, 506 S.W.2d 753 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.).

The court noted in Perryman v. Sims, supra, at page 756 as follows:

Where the jury finds substantial performance, a further finding that the work was not performed in a good and workmanlike manner does not, in our opinion, prevent a recovery on the contract.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ashford Partners, Ltd. v. Eco Resources, Inc.
401 S.W.3d 35 (Texas Supreme Court, 2012)
Turner v. Precision Surgical, L.L.C.
274 S.W.3d 245 (Court of Appeals of Texas, 2008)
Paul Turner v. Precision Surgical, LLC
Court of Appeals of Texas, 2008
Moreno v. Ace Transportation, Inc.
813 S.W.2d 597 (Court of Appeals of Texas, 1991)
Nagel Manufacturing & Supply Co. v. Ulloa
812 S.W.2d 78 (Court of Appeals of Texas, 1991)
Rathmell v. Morrison
732 S.W.2d 6 (Court of Appeals of Texas, 1987)
C.S.R., Inc. v. Industrial Mechanical, Inc.
698 S.W.2d 213 (Court of Appeals of Texas, 1985)
Skaggs v. Guerra
704 S.W.2d 51 (Court of Appeals of Texas, 1985)
City of Webster v. Signad, Inc.
682 S.W.2d 644 (Court of Appeals of Texas, 1984)
Lee v. Ardoin
677 S.W.2d 686 (Court of Appeals of Texas, 1984)
John T. Measday v. Kwik-Kopy Corporation
713 F.2d 118 (Fifth Circuit, 1983)
Lowe v. Morrison
412 So. 2d 1212 (Supreme Court of Alabama, 1982)
Bernhardt v. McGuire & Pritchard
607 S.W.2d 8 (Court of Appeals of Texas, 1980)
Taylor v. Rigby
574 S.W.2d 833 (Court of Appeals of Texas, 1978)
Warren v. Denison
563 S.W.2d 299 (Court of Appeals of Texas, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
563 S.W.2d 299, 1978 Tex. App. LEXIS 2836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warren-v-denison-texapp-1978.