Butler, Williams & Jones v. Goodrich

• Decision Date: 24 October 1957
• Docket Number: No. 13133,13133
• Citation: 306 S.W.2d 798
• Court: Texas Court of Appeals
• Parties: BUTLER, WILLIAMS & JONES, a Co-Partnership, et al., Appellants, v. R. H. GOODRICH, Appellee.

Page 798

306 S.W.2d 798

BUTLER, WILLIAMS & JONES, a Co-Partnership, et al., Appellants, v. R. H. GOODRICH, Appellee.

No. 13133.

Court of Civil Appeals of Texas, Houston.

Oct. 24, 1957.

Rehearing Denied Nov. 7, 1957.

John M. Barron, Bryan, and W. E. Barron, Navasota, for appellant.

McClain & Harrell, Conroe, for appellee.

WOODRUFF, Justice.

R. H. Goodrich, appellee, instituted this suit on August 6, 1955, in the District Court of Waller County against the appellants, Carl L. Butler, Jr., Glynn A. Williams and Truman R. Jones, Jr., individually and as co-partners doing business as Butler, Williams & Jones, seeking damages in the sum of $9,156 sustained as the result of the alleged breach of a contract between appellee and appellants providing for the repair and replacement of a portion of appellee's house. He also sued on a written guaranty which was executed by appellants in favor of appellee upon completion of the job.

Previously, on March 6, 1951, the parties hereto had entered into a written contract whereby appellants agreed to construct a house for appellee for a total amount of $72,320.25 according to the plans and specifications prepared by appellee's architects, which provided that the roof was to be of a lightweight concrete known as 'Permalite.' The specifications on this item were very definite, stating the exact proportions of the material to be used in mixing each batch of Permalite which included the amount of water, the mixing methods, batch sizes and the time of mixing. The curing methods set forth in the specifications called for the placing of Sisalkraft paper of some equal material upon the concrete within six hours after it was poured, and the paper was to be kept thereon for at least ten days.

The house had two roof levels, one above the one-story section and the other above the two-story section. On December 4, 1951, the roofs on both levels had been completed, when a tornado on that date destroyed the rood above the two-story section.

Pursuant to the terms of the original contract, appellee Goodrich had taken out a builder's risk insurance policy with the American General Insurance Company which protected both the contractor and the owner against all loss occasioned by wind damage, in the maximum amount of $15,000. Shortly after December 4, 1951, a representative of the insurance company requested the appellants to estimate the cost of repairing the damage done by the storm and after an exchange of letters between December 7, 1951, and December 20, 1951, appellants agreed with the representative of the insurance company to make all necessary repairs caused by the storm for an amount equal to the actual cost of the work plus $3,000 for overhead expenses and profit. This was the method of establishing the amount of the loss under the terms of the builder's risk insurance policy. The agreement, therefore, had to be submitted to appellee Goodrich for his approval, which was done by a letter addressed to him dated December 17, 1951, stating the terms of the agreement which had been worked out with the representative of the insurance company. Goodrich approved the agreement with the proviso that he would not be obligated to pay appellants in any event a greater amount than that received by him from the insurance company and that payment for the repair work should be made when it was completed and approved by his architects. This addenda was accepted by appellants by letter dated December 20, 1951. Appellants finly received a total amount of $8,580.15 for this work.

It was necessary to put a new Permalite roof on the two-story portion of the building. Appellants went forward with the work and poured the Permalite roof during a seven day period about the middle of January, 1952. On March 5, 1952, at the completion of the work appellants gave appellee a letter which read: 'We guarantee all workmanship and material used in the construction of your residence near Hempstead, Texas, for a period of one year. Fair wear and tear excepted,' which appellant Jones testified included all the work.

In September or November of 1952, the roof started flaking to some extent. Appellee said he did not know what caused it but, as time passed, the flaking or spalling became progressively worse. The proof further showed that the house started leaking badly, and especially around the chimney, all of which occurred on the second story level. As a result of the progressive deterioration, appellee filed this suit in August, 1955.

It was further shown that originally he had joined the Detering Company who furnished the material known as Permalite on the job, and also his architects, Wilson, Morris & Crain, but before the suit came on for trial they were dismissed and the pleadings amended so that appellants were the only defendants.

Upon trial the appellee complained only of the condition of the roof above the second story part of the building. All witnesses agreed that the roof was definitely defective because the spalling and disintegration had increased by November, 1956, to the extent that the roof was coming off in large pieces and strips. The issue between the parties on this point raised by the testimony was whether or not the defect was caused by the failure of appellants to follow the architects' specifications in measuring and mixing the Permalite and in not following the method of curing the concrete as set forth in the specifications; or whether or not the failure of the roof was due to an inherent defect in the material itself which made it unsuited for roofing material, and especially in Waller County. In connection with the latter contention it was the appellants' position that appellee's architects had specified use of the Permalite material and they and appellee were responsible for the defective condition of the roof and not the appellants.

The case was submitted to the jury on nine special issues. By their answers as contained in the verdict, the jury found that the defect in the roof which developed within one year from March 5, 1952, were a direct and proximate result of the workmanship and materials used in the construction of the roof by the appellants; that appellants failed to mix the Permalite concrete for the roof as provided by the contract specifications, which failure was a proximate cause of the defects in the roof; that the appellants failed to cover the Permalite concrete with Sisalkraft paper, or equal, within six hours after pouring, and to leave it thereon for at least ten days, and that was a proximate cause of the defect; that the Permalite-type roof specified by the contract was not unsuitable for residential purposes in Waller County, and, therefore, the following issues of proximate cause and sole proximate cause were not answered. In response to the issue inquiring as to the reasonable and necessary cost in Waller County of replacing the roof the jury answered: '$7,560.00.'

Judgment accordingly was entered by the trial court on December 10, 1956, in behalf of the appellee against the appellants, individually and as co-partners, for $7,560 with interest from date at the rate of 6% and costs of suit. On December 13, 1956, appellants filed a motion for new trial, which was overruled by the trial court on December 14, 1956, appellants duly excepting, and this appeal has been duly perfected to this Court.

Appellants by ten points of error present four basic contentions in seeking a reversal of this cause. Each will be discussed separately along with appellee's applicable counter-points.

First, appellants contend that appellee is estopped to prosecute this suit by a judgment previously rentered in the District Court of Brazos County in which appellee Goodrich was the real party at interest, and where, so they assert, the issue of proper performance of the roofing contract was litigated and determined against the appellee and, therefore, the trial court erred in this cause in excluding the certified copies of the pleadings and the judgment in the suit to establish the defense of estoppel by judgment in this cause.

When appellants attempted to introduce in evidence the proceedings in Cause No. 13,572, styled Carl L. Butler, Jr., et al., v. American General Insurance Company, entered April 8, 1953, and to question appellee Goodrich in regard to his connection with that case, appellee's counsel objected to such testimony, first because there was no pleading to support it, and secondly, different parties were involved, appellee Goodrich not being a party thereto, and thirdly, the issue there was a separate and entirely different issue than that involved in this suit. The trial court sustained the objection and excluded the testimony.

Appellants contend that they had sufficiently pled res judicata in their answer by the following language:

'* * * and the further fact that all issues as to the proper and good and workmanlike performance of the contract and agreements herein have been heretofore fully decided and settled as provided by law and by contract, upon identical issues controlling, the plaintiff is estopped to deny the fully and satisfactory and substantial performance of the contract or contracts, aforesaid, and that all matters controlling herein and all issues have been fully satisfied and adjudicated.'

In support of the trial court's ruling, appellee cites Rule 94, Texas Rules of Civil Procedure, which provides that the defense of res judicata and any other matter constituting an avoidance or affirmative defense must be pleaded by the defendant to be available as a defense.

Appellants point out that appellee did not except to their pleading and, therefore, he should not be permitted to complain of its insufficiency.

The provisions of Rule 90, that every defect, omission or fault in a pleading, either of form or substance, which is not specially pointed out by motion or exception in writing shall be deemed to have been waived, is restricted by its...