Brammer & Wilder v. Limestone County

• Decision Date: 05 December 1929
• Docket Number: (No. 802.)
• Citation: 24 S.W.2d 99
• Parties: BRAMMER & WILDER et al. v. LIMESTONE COUNTY et al.
• Court: Texas Court of Appeals

Page 99

24 S.W.2d 99

BRAMMER & WILDER et al. v. LIMESTONE COUNTY et al.

(No. 802.)

Court of Civil Appeals of Texas. Waco.

December 5, 1929.

Rehearing Denied January 23, 1930.

Appeal from District Court, Limestone County; W. R. Boyd, Judge.

Suit by Limestone County against Brammer & Wilder and another. From an adverse judgment, the defendants appeal. Reversed and cause remanded.

Dodson & Ezell, of San Antonio, A. M. Blackmon, of Groesbeck, Seay, Seay, Malone & Lipscomb, of Dallas, and Richard & A. P. Mays, of Corsicana, for appellants.

J. E. & B. L. Bradley and Mr. & Mrs. C. S. Bradley, all of Groesbeck, and C. H. Machen, of Mexia, for appellees.

BARCUS, J.

In the summer of 1925, appellee, Limestone County, hereinafter designated county, entered into a contract with appellants Brammer & Wilder, hereinafter called contractors, under the terms of which the contractors were to build about 18 miles of macadamized roads. The United States Fidelity & Guaranty Company, hereinafter called surety company, signed said contractors' bond, under the terms of which it guaranteed that the contractors would build said road in accordance with the plans and specifications. On December 29, 1926, the eighteenth estimate, as a basis for partial payment, was presented to the commissioners' court of the county, and same was approved, allowed, and paid. On December 30, 1926, the engineer wrote a letter to the county and the surety company, stating that the roads had been completed and accepted and finally paid for, and that the surety company was discharged. On January 18, 1927, the final estimate asked for by the contractors, in the sum of $9,481, was by the commissioners' court of the county refused. On January 24, 1927, this suit was filed by the county to recover from the contractors and the surety company damages which it claimed it suffered by reason of the roads not having been built according to the plans and specifications.

The specifications under which the roads were to be built called for the building of seven different pieces of roads, and embrace 80 pages in the statement of facts, going into the minutest detail as to the method, manner and material to be used in the construction of said roads. The county employed Horace Boyett, an engineer, to superintend and supervise the building of said roads. The contract made between the county and the contractors provides specifically that said engineer shall act as referee in all questions arising under the contract between the parties, and his decision shall be final and binding upon all parties. It provides that the engineer has the right to make such alterations in the plans or in the character of the work as he considered necessary or desirable, provided the alterations did not change materially the original plans and specifications.

The county's pleadings are very voluminous, covering some 75 pages. It alleged that a conspiracy to defraud the county existed between the contractors, the county engineer, and Mr. Kennedy, the county commissioner in whose precinct the roads were being constructed; that by reason thereof the contractors failed to construct the roads according to the plans and specifications; that the engineer made false and fraudulent reports and estimates to the commissioners' court; and that Mr. Kennedy, the county commissioner in the precinct where the roads were being built, without knowledge on the part of the other members of the commissioners' court, entered into said conspiracy, and that, as a result of the conspiracy as existing between said parties, the various estimates as made by the engineer were allowed and paid by the commissioners' court. The county further alleged that its engineer, Mr. Boyett, was incompetent and dishonest, and that, in making the estimates as the work progressed and in performing the service as engineer, he acted dishonestly and fraudulently. The county alleged in detail some 34 separate and different acts which it claimed the contractors had failed and neglected to do in the construction of said roads, as required by the plans and specifications. The county further alleged that it had paid to the contractors certain sums of money for extra work, which it alleged the contractors had not earned and were not entitled to, and listed said items, being 11 in number and aggregating $78,814.56. The county further alleged that, if the 17.94 miles of road had been constructed according to the specifications, same would have been worth $352,881.11; that "by reason of the failure and neglect of the contractors to comply with the terms of the contract as herein alleged," the roads as constructed by the contractors were not worth more than $161,705.37, and that the county had thereby been damaged in the sum of $191,174.74, being the amount it had paid the contractors over and above what the county alleged the roads as built were worth. The county further alleged that it had paid certain parties, naming them, for policing the roads while they were being built, the sum of $2,409, which it alleged should have been paid by the contractors. The county further alleged that it was entitled to 6 per cent. interest on all sums of money from the date the wrongs, injuries, and delinquencies occurred. It asked for judgment for its debts, reimbursements, advances, damages, interest, and general and special relief.

The county by a trial amendment alleged that the various estimates made by the county engineer, which were approved by the county auditor, as well as the acceptance of the roads and the various orders made in reference thereto, were made and approved by the commissioners' court as a result of a custom that had existed for years in the commissioners' court of Limestone county, under which all work being done in a commissioner's precinct was approved by the commissioners' court, unless the commissioner from the precinct where the work was being done made some protest. The county alleged that the commissioner Kennedy, in whose precinct the roads in controversy were being built, was in conspiracy with the contractors and the engineer, and for said reason entered no protest against the allowance of the various estimates and orders made relative to the construction of said roads.

The contractors urged a large number of special exceptions to the pleadings of the county. They further specially excepted to the portion of the county's pleadings which attempted to plead a custom existing in the commissioners' court, under which said court, without any investigation, approved the bills for work performed on the roads, because the commissioner in said precinct made no complaint with reference thereto. The contractors further specially pleaded that all the work done on the roads had been under the direct supervision and control of the county engineer, and that all the changes that had been made in the construction thereof were at the instance, request, and under the direction of said engineer, and that under the terms of the contract all parties were bound by the acts of said engineer. They further specially pleaded that on October 5, 1926, the commissioners' court had by an order accepted three of the seven roads embraced in the contract, having a total of 7.78 miles, and that the county was thereby estopped from claiming any damages with reference thereto.

The surety company adopted all the pleadings of the contractors, and in addition alleged that it was relieved from all liability by reason of the fact that there had been a number of material changes, which it named, made in the plans and specifications after it had signed and executed the bond; and, further, that it was relieved because the county had failed and refused to retain the ten per cent. on each estimate, as required under the contract.

The cause was submitted to a jury on nine special issues. After giving a number of other special instructions, the court, by paragraph 8, stated: "In determining and answering the special issues herein, you will not consider as a material change or departure from the terms and provisions of the contract, any departures or changes, if any, made by order of the commissioners court."

Said special issues submitted and the answers of the jury thereto were as follows:

"(1) Do you find that Bramer & Wilder and their employees departed materially from the terms and provisions of the contract in evidence and failed to perform said contract for the construction of said roads in substantial compliance with its terms and provisions? Answer: Yes.

"(2) Find and answer whether such roads as constructed were of substantially inferior quality and utility and less serviceable value than they would have been if constructed in substantial compliance with the terms and provisions of said contract, if they were not so constructed. Answer: Yes.

"(3) Find and answer what amount of money if any, it would have required, at the time said roads were turned over to plaintiffs, to have reconstructed or repaired them so as to have been of substantially the same quality, utility and serviceable value as they would have been if constructed in substantial compliance with the terms and provisions of said contract and specifications, if they were not so constructed. Answer: $105,719.40.

"(4) Do you find that at the time such roads were turned over to plaintiffs there were any material defects in them requiring mending or patching to make them comply with the terms and provisions of said contract and specifications? Answer: Yes.

"(5) Find and answer what amount of money, if any, it would have required at the time the roads were turned over to plaintiffs to have mended or patched them so as to make them comply substantially with the terms and provisions of the contract and specifications, if they were not so constructed? Answer: $105,719.40.

"(6) Do you find from the evidence that Horace Boyett and John Kennedy conspired with each other or that they or either of them...