Brazoria County v. Knutson

• Decision Date: 15 December 1943
• Docket Number: No. 8139.,8139.
• Citation: 176 S.W.2d 740
• Parties: BRAZORIA COUNTY v. KNUTSON.
• Court: Texas Supreme Court

176 S.W.2d 740

BRAZORIA COUNTY v. KNUTSON.

No. 8139.

Supreme Court of Texas.

December 15, 1943.

Rehearing Denied January 26, 1944.

Error from Court of Civil Appeals of First Supreme Judicial District.

Suit by S. Knutson against the County of Brazoria to recover on contract for construction of a jail and courthouse. To review a judgment of the Court of Civil Appeals, 170 S.W.2d 843, which reformed a judgment adverse to plaintiff, defendant brings error.

Judgment of the Court of Civil Appeals affirmed.

Richard J. Higgins, Cleveland Davis, John C. Henderson, and Floyd Enlow, all of Angleton, for plaintiff in error.

Battaile & Burr, of Houston, for defendant in error.

CRITZ, Justice.

This suit was filed in the District Court of Brazoria County, Texas, by S. Knutson against such county, to recover the sum of $7,191.25, with legal interest, alleged by Knutson to be due him by the county as the balance owing for the construction of a courthouse for the county. The county defended on the ground that it was entitled to a certain credit from the contract price of the courthouse, because the piles under the footings thereof were not driven to a depth of 30 feet, as provided in the contract. Trial in the district court resulted in a judgment for Knutson for $3,216.25. Such judgment was arrived at by allowing the county a deduction of $3,975 from the $7,191.25 sued for. It was conceded that the county owed Knutson the sum sued for, less any deduction the county was entitled to on account of the piles not being driven to a depth of 30 feet. On appeal by Knutson the Galveston Court of Civil Appeals in effect reversed the judgment of the district court, in so far as it allowed the county the credit above mentioned, and rendered judgment for Knutson therefor. 170 S.W.2d 843. The county brings error.

On November 27, 1939, Brazoria County duly entered into a written contract with S. Knutson for the construction by Knutson of a courthouse for the county, in accordance with plans and specifications prepared by Lamar Q. Cato as architect. The contract between Knutson and the county provided for either "pre-cast" concrete piles or "cast-in-place" concrete piles under the foundation. The "cast-in-place" piles were used. The contract provided that such piles should be driven to a depth of 30 feet. Knutson subcontracted the work of driving these piles. It was found that it was necessary to drive them only 20 feet to secure a proper and adequate foundation, and they were driven only to such depth. No contention was made that the contractor violated his contract in not having such piles driven to a depth of 30 feet, instead of to a depth of 20 feet. Knutson required the subcontractor to deduct the sum of $2,650 from the amount of his contract, on account of driving the piles 20 feet instead of 30 feet.

The contract provided that the county should make monthly payments to the contractor on estimates approved by the architect. The first estimate was duly approved by the architect, except he deducted therefrom the sum of $2,650, on account of the fact that the concrete piles were driven to a depth of 20 feet, instead of 30 feet, as provided in the contract. Knutson presented the estimate to the county for payment, but refused to accept the deduction. The contract provided for deviations from the drawings or specifications in the execution of the work, on the approval of the architect. As we understand this record, all parties, including the architect, approve the depth to which these piles were driven but there was no direct agreement, one way or the other, as to whether or not any deduction would be made in favor of the county on account of the lesser depth to which they were driven, and no agreement has since been made in regard thereto. The contractor has finished the courthouse, and same has been accepted by the county. The county owes the contractor the $7,191.25 here sued for, less any deduction the county may be entitled to on account of the piles being driven to a depth of 20 feet, instead of to a depth of 30 feet.

The original contract between the county and Knutson provided that: "All questions subject to arbitration under this contract shall be submitted to arbitration at the choice of either party." So far as here pertinent, the contract then provides that the county shall select one arbitrator, Knutson one, and the two so selected shall select the third. Acting under the above contractual provision, Knutson demanded an arbitration. The county acceded to such demand, and each party selected an arbitrator. The two so selected selected a third.

It appears that a pretrial hearing was had in this cause, and as a result thereof the county made, among others, the following admissions:

"15.

"The Architect in his first estimate, dated January 31, 1940, which included the work of driving the piles as aforesaid, allowed the defendant County a credit against the contract price in the amount of $2,650.00 because of the fact that said piles were driven to a depth of 20 feet instead of to a depth of 30 feet."

"16.

"The Plaintiff promptly protested such deduction, but both the County and the Architect insisted on same, and failed and refused to pay the amount so deducted, or any part thereof, to plaintiff."

"17.

"After the defendant and the Architect had insisted on said deduction of $2,650.00 from the contract price, and refused to pay the same, or any part thereof, to the plaintiff, plaintiff requested that the right of the defendant to such credit be submitted to arbitration, and named one Robert Thomas as an arbitrator, and the defendant, pursuant to plaintiff's request, named one Ben D. Cannan as an arbitrator. The two arbitrators so named chose one David M. Duller as the third arbitrator."

"18.

"Plaintiff and defendant duly submitted the matter in dispute between them, towit, the question whether Brazoria County was entitled to a credit on account of the footage of piling not driven between the depths of 20 and 30 feet, to said arbitrators, namely, Robert Thomas, Ben D. Cannan and David M. Duller, who after due consideration rendered their award and decision in...