Board of Regents of University of Texas v. S & G Const. Co.

• Decision Date: 08 October 1975
• Docket Number: No. 12312,12312
• Citation: 529 S.W.2d 90
• Parties: The BOARD OF REGENTS OF the UNIVERSITY OF TEXAS, Appellant, v. S & G CONSTRUCTION COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 90

529 S.W.2d 90

The BOARD OF REGENTS OF the UNIVERSITY OF TEXAS, Appellant, v. S & G CONSTRUCTION COMPANY, Appellee.

No. 12312.

Court of Civil Appeals of Texas,

Austin.

Oct. 8, 1975.

Rehearing Denied Nov. 5, 1975.

John L. Hill, Atty. Gen., John Reeves, Asst. Atty. Gen., Austin, for appellant.

Douglass D. Hearne, Stayton, Maloney, Hearne & Babb, Austin, for appellee.

PHILLIPS, Chief Justice.

This case involves a contract entered into between the Board of Regents of the University of Texas, the appellants here, and the S & G Construction Company, the appellee, to construct married students' apartments. The apartments were completed to the satisfaction of both parties to the contract; however, due to errors in the topographic survey furnished by the Regents as required by the contract, considerable additional work by the builder was necessary to complete the project. Both parties agree that extra compensation is due the builder, but they disagree on the measure, and consequently on the amount of the additional compensation. Appellant contends that both parties performed in accordance with the provisions of the contract and that any additional compensation that may be due to appellee must be calculated within the provisions of the contract relating to extra work performed. Appellee, however, maintains that appellant breached the contract and seeks damages resulting from such breach.

Upon trial in the 126th District Court of Travis County, a jury answered special issues to the effect (1) that the defendant Regents failed to provide correct plans and specifications and additional instructions and detailed drawings as were necessary to carry out the work called for in the contract, (2) that but for this failure plaintiff builder could have performed the work called for within the time and price stated in the contract, (3) that because of defendant's failure plaintiff builder was required to do additional work, and (4) that adequate compensation to appellee for the additional work required by defendant Regent's failure to provide the plans was $837,674.90. ¹

Based on these findings, the trial court awarded plaintiff builder $837,674.90 in damages, plus interest thereon from August 16, 1973 until paid, and $12,000 of the contract price withheld by the Regents as liquidated damages for the late completion of the project. We affirm this judgment.

Appellant is before us on ten points of error, the first two, briefed together, being the error of the court in admitting evidence of appellee's costs of construction of the entire project because this evidence violates the parol evidence rule; and also, because the judgment allows the appellee to be compensated on a basis which is different from that provided for in the written contract between the parties. We overrule these points.

Appellant's theory of the case, for which, it maintains, it should have been awarded judgment as a matter of law, is that appellee is only entitled to the compensation provided in the written contract plus compensation for additional work performed pursuant to approved written change-orders as specified in the contract itself. Appellant maintains that pursuant to this theory it made no effort to refute appellee's proof of costs because such evidence was totally inadmissible.

Appellee, on the other hand, contends that appellant under the contract, was responsible for providing accurate and reliable plans, drawings and specifications, that appellant breached the contract by failing to provide these documents, and that the real issue in the case is whether or not appellant can escape liability for damages incurred by appellee in constructing the project without accurate and reliable written plans.

It is undisputed that the parties entered into the contract in question and that appellee agreed to do the work specified in the General Conditions and Supplemental General Conditions of the contract. This included maps, plats, drawings, site plans and all revisions and changes made pursuant to the contract documents. It is likewise admitted that appellee completed the project and that appellant paid appellee the amount stated in the written contract plus amounts agreed upon for additional work performed pursuant to approved written change-orders. As stated above, appellant admits that there is, in all likelihood, additional compensation due appellee, however, it insists that compensation must be calculated under the terms of the contract. These provisions, set out in the contract under the General Conditions, are as follows:

'17. Changes in Work

No changes in the work covered by the approved Contract Documents shall be made without having prior written approval of the Owner. Charges or credits for the work covered by the approved change shall be determined by one or more, or a combination of the following methods . . .

'18. Extras

Without invalidating the contract, the Owner may order extra work or make changes by altering, adding to or deducting from the work, the contract sum being adjusted accordingly, and the consent of the Surety being first obtained where necessary or desirable. All the work of the kind bid upon shall be paid for at the price stipulated in the proposal, and no claims for any extra work or materials shall be allowed unless the work is ordered in writing by the Owner or its Architect/Engineer, acting officially for the Owner, and the price is stated in such order.

'22. Claims for Extra Costs

No claim for extra work or cost shall be allowed unless the same was done in pursuance of a written order of the Architect/Engineer approved by the Owner, as aforesaid, and the claim presented with the first estimate after the changed or extra work is done. When work is performed under the terms of subparagraph 17(c) of the General Conditions, the Contractor shall furnish satisfactory bills, payrolls and vouchers covering all items of cost and when requested by the Owner, give the Owner access to accounts relating thereto.' (Emphasis added)

It is also admitted that a serious error existed in the original topographical site survey which required the building sites to be moved thus requiring the appellee-contractor to do additional work. It is appellant's position that upon discovery of the error a meeting was held between the owner, the architect, and the contractor at which time it was decided not to shut down the project but to complete it as scheduled using the original plans and specifications, where appropriate, and making such revisions and additions as were necessary to carry out the work under the contract. Appellant contends that appellee had the right to withdraw his bid and refuse to perform the contract when the error was discovered. ² Instead, appellee chose not to withdraw his bid and refuse to perform under the contract but rather chose to perform the contract and to be paid the sum provided for in the contract documents, and proceeded to complete the project in accordance with the plans and specifications as subsequently revised.

We cannot agree with appellant's position on these points.

The evidence is undisputed that appellee was never furnished the additional plans for which the contract provided:

'The Contractor will be furnished additional instructions and detail drawings as necessary to carry out the work included in the contract. The additional drawings and instructions thus supplied to the Contractor will coordinate with the Contract Documents and will be so prepared that they can be reasonably interpreted as part thereof. The Contractor shall carry out the work in accordance with the additional detailed drawings and instructions.' (Emphasis added)

At the close of evidence the case was submitted to the jury which found that the appellant failed to provide correct plans and specifications and additional instructions and detailed drawings as were necessary to carry out the work called for in the contract; and further found, that because of appellant's failure to provide correct plans and specifications and additional instructions and detailed drawings as were necessary to carry out the work called for in the contract, appellee was required to do the additional work occasioned by the breach.

In submitting these issues to the jury, the trial court implicitly found that appellant was bound by the contract to furnish such written plans as were necessary to carry out the work called for under the contract. The jury's answers conclusively established that appellant breached this duty and that as a result of such breach, appellee was damaged.

As we stated above, the evidence supporting the jury's findings is, for all practical purposes, undisputed. The contract called for the construction of additional married student housing for the University of Texas. This project, located at the site of the old Confederate Home on West Sixth Street in Austin, consisted of constructing eighteen new multistoried apartment units, the remodeling of two others, along with the construction of the necessary streets, parking lots, curbing, drainage facilities, sidewalks, utilities, landscaping and recreational and laundry facilities. The topography of the site is extremely uneven with abrupt elevation variances throughout.

The contract called for the project to be built in accordance with certain plans and specifications prepared by an independent architectural firm chosen exclusively by appellant. Included among the plans were fifteen pages of site plans which detailed the overall layout, elevation, and relationship of the various improvements to one another and to given existing physical monuments. By use of these plans and specifications, appellee had estimated the cost of the job and had submitted its bid based on that estimate.

Immediately after work was begun, it was discovered that these site plans were so totally inaccurate that it was physically impossible for appellee to utilize them in constructing the project....