Bernard Johnson, Inc. v. Continental Constructors, Inc.

• Decision Date: 10 February 1982
• Docket Number: No. 13522,13522
• Citation: 630 S.W.2d 365
• Parties: BERNARD JOHNSON, INC., Appellant, v. CONTINENTAL CONSTRUCTORS, INC., Appellee.
• Court: Texas Court of Appeals

Page 365

630 S.W.2d 365

BERNARD JOHNSON, INC., Appellant, v. CONTINENTAL CONSTRUCTORS, INC., Appellee.

No. 13522.

Court of Appeals of Texas, Austin.

Feb. 10, 1982.

Rehearing Denied April 4, 1982.

John T. Anderson, Graves, Dougherty, Hearon, Moody & Garwood, Austin, for appellant.

Chris C. Pappas, Wyckoff, Russell, Dunn & Frazier, Houston, for appellee.

POWERS, Justice.

Appellee, Continental Constructors, Inc., sued, in Travis County, Texas, the Texas Parks and Wildlife Department and appellant Bernard Johnson, Inc. The suit arose out of appellee's construction of a bulkhead at Lake Livingston, Texas under a contract between appellee and the Department. The contract called for construction of the bulkhead to plans and specifications prepared by appellant and contained other provisions which allegedly gave appellant certain powers and duties as "the architect/engineer."

Appellant interposed a plea of privilege to be sued in Harris County, its "residence" for venue purposes. Tex.Rev.Civ.Stat.Ann. art. 1995 (1964). The "residence" of the Department, for venue purposes, is Travis County.

The trial court denied appellant's plea of privilege after hearing and sustained appellee's controverting plea to the effect that venue in Travis County was proper as to both defendants under exception four of article 1995. That exception provides, rather simply for our purposes, that if two defendants reside in different counties, suit may be brought in the county where either defendant resides. Appellee proved a prima facie case against the Department, a "resident" of Travis County, and contends appellant must, therefore, under exception four, submit to venue in the county. Appellant resists based upon the interpretation given exception four in Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936).

Appellant admits appellee was not required to establish, by extrinsic evidence, a prima facie case against appellant, the non-resident defendant; rather, the issue of venue in the present circumstances must be determined solely upon this proposition of law: Do the allegations of appellee's petition and controverting plea show a cause of action against appellant which is either: (1) a joint claim against the appellant and the Department; or (2) a cause of action growing out of the same transaction and so intimately connected with the claim against the Department that the two should be joined under "the rule intended to avoid a multiplicity of suits?" Id.

An examination of appellee's controverting plea reveals that it incorporates by reference all the allegations contained in appellee's petition. The petition, in turn, asserts against the Department, the resident defendant, two causes of action in contract: (1) appellee fully performed the bulkhead contract and its work thereunder had been finally accepted by the Department; the completion of the work required extra fill material which appellee supplied; the bulkhead contract expressly required the Department to pay for the extra material; and, the Department breached the bulkhead contract by refusing to pay for it; and (2) the bulkhead failed, although built to contract plans and specifications, whereupon the Department requested that appellee rebuild With respect to the claims alleged by appellee against appellant, the non-resident defendant, the petition reveals an intent to allege a cause of action in negligence and one for breach of contract.

it; an unnamed agent or representative of the Department represented that the Department would pay for the rebuilding; appellee rebuilt the bulkhead; and, the Department breached this concomitant oral contract by refusing to pay the reasonable value of appellee's work in making the requested repairs.

In setting forth its claim of negligence, appellee makes the following allegations: appellant was engaged by the Department to serve as architect on the bulkhead project; appellant prepared the pertinent plans and specifications; under the terms of the bulkhead contract, appellant was made responsible for the general administration of the contract as the "representative" of the Department during construction; and, appellant was negligent, the negligence being alleged in the following words:

Plaintiff would show that said Defendant failed to properly administer the Bulkhead Project. Due to the failure of said Defendant to properly process the change orders and administer said Project, Plaintiff suffered extensive delays and the increased costs resulting therefrom. Said Defendant abrogated its responsibilities in supervising and administering the Bulkhead Project. The acts and/or omissions on the part of said Defendant constitute negligence as that term is understood in law. Such negligence proximately caused Plaintiff's damages, which Plaintiff would show greatly exceed the minimum jurisdictional limits of this court.

Appellee's claim for breach of contract is stated as follows:

Pleading further, and in the alternative, Plaintiff would show that the Defendant, Bernard Johnson, Incorporated, failed to perform the responsibilities delegated to it under the Bulkhead Contract. Specifically, said Defendant failed to properly supervise and administer the Bulkhead Project. As a result of such failure, said Defendant breached said contract thereby causing Plaintiff's damages as herein referenced.

Appellee does not contend appellant became generally liable on the contract between appellee and the Department. Nor does appellee contend appellant became contractually bound to appellee by virtue of an express contract between them. Rather, appellee claims that because appellant furnished the "job specifications" and assumed the obligations specifically assigned to appellant in the express contract between appellee and the Department, appellant thereby became contractually bound in favor of appellee to perform those obligations without negligence. Thus, so far as we are able to determine from appellee's briefs and rather indistinct allegations, appellee's claim is ultimately one for negligence only; the duty to avoid such negligence being said, however, to have an origin either (1) in the express contract made between appellee and the Department, or (2) in the common law of negligence. ¹

Essential to showing any "cause of action," that is, a claim cognizable in the courts of our State, are allegations sufficient to invoke a rule of substantive law which, under the circumstances alleged, vests in the plaintiff a right and imposes upon the defendant a corresponding duty which he has breached. MacDonald v. Trammell, 163 Tex. 352, 356 S.W.2d 143 (1962); Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S.W. 707 (1901); Tex.R.Civ.P. 45, 47; 1 McDonald, Texas

Civil Practice § 2.02 (rev.1981); 2 id., § 6.12. Whether the plaintiff's factual allegations set forth a right, a duty and a breach cannot be determined except by reference to the substantive law. We inquire first whether the requisite duty on appellant's part could have arisen by force of a contract to which he was admittedly not a party in the ordinary sense.

A DUTY BASED UPON CONTRACT

The substance of appellee's allegations, when we liberally interpret them and supply every reasonable intendment, is that appellant failed to perform with the requisite degree of care, skill, expedience, and faithfulness, the matters which were assigned to appellant in the express contract between the Department and appellee. Appellee's brief refers to these contract provisions and quotes some of them in their entirety. It is inconceivable that appellee could maintain its action against appellant without proving at trial the contents of the bulkhead contract and the resulting duty said to be placed upon appellee therein. In such cases, any action is said to be in substance an action on the contract, even though it is denominated an action for negligent performance of the contract. ² International Printing Pressman & Assistants' Union v. Smith, 145 Tex. 399, 198 S.W.2d 729 (1947).

As a general rule, a suit for breach of contract may not be maintained against a person who is not a party to the contract, particularly a non-party who is assigned duties by the terms of the contract. Jones v. George, 61 Tex. 345 (1884); Carruth v. Valley Ready-Mix Concrete Co., 221 S.W.2d 584 (Tex.Civ.App.-Eastland 1949, writ ref'd); 17A C.J.S. Contracts §§ 520, 522 (1963). As between the contracting parties themselves, it is well established that each owes a duty to the other to perform contractual obligations with care, skill, reasonable expedience and faithfulness, either personally or through one for whom the obliged party is responsible. A breach of duty in that case gives rise to a cause of action for negligence against the other contracting party. Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508 (1947). Here, it is not alleged appellant was a "contracting party," though in appellee's briefs we are told appellant somehow became contractually obligated to appellee on at least some of the contract terms. We draw from appellee's sparse allegations that appellant was allegedly negligent in his capacity as "representative" of the Department. If appellant was indeed negligent in the performance of any duty assigned to it in the bulkhead contract, that negligence would be imputed to the Department. Then the Department would be liable therefore, just as Montgomery Ward & Co. was held liable for the repairman's negligence in his performance of the contractual obligation owed by Montgomery Ward & Co. in Scharrenbeck. This is not to say, however, that appellant would be liable for his own negligence because of a duty said to arise from his contractual undertaking. Appellant, not being a contracting party, promised nothing to appellee upon which could be erected the implication of law that he also promised to perform the contract provision without negligence. ³ Any such duty on appellant's...