C. H. Leavell & Co. v. Vilbig Bros., Inc.

• Decision Date: 20 April 1960
• Docket Number: No. A-7200,A-7200
• Citation: 160 Tex. 600,335 S.W.2d 211
• Parties: C. H. LEAVELL & CO., Petitioner, v. VILBIG BROS., INC., Respondent.
• Court: Texas Supreme Court

Page 211

335 S.W.2d 211

160 Tex. 600

C. H. LEAVELL & CO., Petitioner, v. VILBIG BROS., INC., Respondent.

No. A-7200.

Supreme Court of Texas.

April 20, 1960.

Rehearing Denied May 18, 1960.

Leachman, Gardere, Akin & Porter, Dallas, for petitioner.

Wm. Andress, Jr., Dallas, for respondent.

WALKER, Justice.

The opinion delivered in this cause on February 10, 1960, is withdrawn, and the following is substituted therefor:

This is a controversy between a general contractor, C. H. Leavell & Co., and one of its subcontractors, Vilbig Bros., Inc. Leavell contracted with North Texas Municipal Water District for the erection of a water treatment plant and the construction of certain streets. Three phases of the street work were then sublet to Vilbig by separate contracts as follows: (1) Contract 169-B for grading and other earth work; (2) Contract 169-C for ready-mixed concrete; and (3) Contract 169-F for curb, gutters and paving. Contract 169-C is not involved in the case. Vilbig brought suit against Leavell to recover the retained percentages under Contracts 169-B and 169-F, and also compensation for extra rough grading alleged to have been done under Contract 169-F, damages for faulty engineering and fraud, and attorney's fees. Leavell admitted liability for the retained percentages subject to its asserted right to recover from Vilbig the cost of correcting a hump and subsidence in the paving laid by the latter and attorney's fees.

The case was tried to the court without a jury, and judgment was entered awarding Vilbig the retained percentages, plus attorney's fees, less $2,458.38 allowed to Leavell for the cost of correcting the hump and subsidence. All other relief sought by either party was denied. Vilbig appealed, and the Court of Civil Appeals held that the trial court erred: (1) in allowing Leavell the cost of correcting the hump and subsidence; and (2) in failing to award Vilbig an additional $4,779.40 for the rough grading. The intermediate court reversed and rendered in Vilbig's favor with respect to these claims and otherwise affirmed the trial court's judgment. 319 S.W.2d 731. Leavell is petitioner here with points of error attacking each of the holdings mentioned above.

There is no dispute as to many of the facts. Under the terms of Contract 169-B, Vilbig was required to bring the streets to within .2 foot of final grade. This work was approved as complete by Leavell's project manager on March 30, 1956, and about two weeks later the contract price less a retainage of ten per cent was paid to Vilbig. Some eight or ten weeks then elapsed before Leavell called upon Vilbig to do the paving under Contract 169-F. In the meantime other subcontractors had installed pipes and utility lines under the streets previously graded by Vilbig.

Under the provisions of Contract 169-F, Leavell was to furnish the streets to Vilbig within .2 foot of final grade, and the latter was to do only what is known as fine grading before starting actual paving operations. When Vilbig returned to begin work on this contract, it was discovered that additional rough grading was necessary because the streets were not within .2 foot of final grade at several places. Vilbig notified Leavell's project manager, D.J. Bandy, who instructed Vilbig to do the work necessary to prepare for the paving. In bringing the streets to proper elevation, Vilbig did considerable grading which was not within the scope of Contract 169-F, and it billed Leavell for the cost of doing this as an extra under that contract. Leavell refused to pay, contending that Vilbig was obligated to do such work under Contract 169-B.

No detailed findings of fact or conclusions of law were filed by the trial court. Its judgment simply recites that Vilbig has failed to establish its claim for extra grading by a preponderance of the evidence. This phase of the case was reversed and rendered by the Court of Civil Appeals, apparently on the basis of its finding that 'the evidence is sufficient to support appellant's claim for $4,779.40 for extra sub-grading as alleged in its petition.' (319 S.W.2d 735.) Our appellate courts may not thus substitute their findings for those of the trial court where the evidence will support either conclusion. The Courts of Civil Appeals have exclusive jurisdiction, of course, to determine whether the findings of the trial court or jury are against the overwhelming weight and preponderance of the evidence, but the sustaining of such a contention usually requires that the cause be remanded for another trial. In the ordinary case an appellate court cannot properly render judgment based on findings contrary to those made by the trial court unless the record shows as a matter of law that the latter are wrong. See Liedeker v. Grossman, 146 Tex. 308, 206 S.W.2d 232; Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286. No question of the weight and preponderance of the evidence has been raised by either party in the present case.

Vilbig obviously is not entitled to recover as an extra under the paving contract for doing that which at the time it was obligated to do under the grading contract. As indicated above, Bandy had certified the grading contract as complete and Leavell had paid the agreed price less a ten per cent retainage prior to the time Vilbig returned to do the paving. In response to a request for release of the retainage, Leavell had also advised Vilbig that the same would be paid upon final acceptance of the project and payment by the owner. Vilbig insists that in these circumstances the grading contract was a closed chapter, and that it is entitled to recover for any work thereafter done at Leavell's request which was not within the terms of the paving contract. This position would be sound if Leavell had waived, or was estopped from insisting upon, further performance under the grading contract.

Contract 169-B provides that acceptance of the work and making of final payment to the subcontractor would not relieve the latter of liability for defects in the work which were thereafter discovered. Bandy testified that Vilbig wanted to take its equipment to another job and asked for a release on the grading work; that he was unable to give such a release because only the owner's engineer could accept the work; that he did agree to the removal of Vilbig's equipment, but in the course of the conversation tried to make it clear that the latter had not completed the rough grading; that since the two contracts obligated Vilbig to take the streets down to final grade and pave them, he saw no objection to letting the subcontractor leave before all work on the grading contract had been done; that although he did not know it at the time, there was one place which Vilbig had not touched at all; and that he approved the grading contract as complete knowing that Leavell had a cushion of the ten per cent retainage. In the light of this testimony and the contract provision, it is our opinion that the certification, payment and letter do not establish waiver or estoppel as a matter of law, and the trial court is presumed to have found in Leavell's favor on each of these issues.

Vilbig had the burden then of proving that the dirt work for which it sought extra compensation was not within the terms of the grading contract. See 17 C.J.S. Contracts § 591. The testimony of its officers supports the conclusion that the streets were brought to within .2 foot of final grade before the heavy equipment was moved in March, and that excess dirt from the utility ditches was later spread thereon. Photographs taken at the time it returned show piles of dirt in the areas which were to be paved. There is also testimony that the streets were used by Leavell and its other subcontractors during the ten-week period, and that such use while the ground was wet caused the surface to become rutted and uneven. Without attempting to review the evidence in detail, we agree with the Court of Civil Appeals that the record will support a finding that Vilbig was required to do rough grading which was not within the terms of either of its contracts.

On the other hand, Bandy testified that none of the contractors or subcontractors spread excess dirt where Vilbig had graded, and that the piles of dirt shown in the pictures were removed by another subcontractor, Condon & Cunningham. He also stated that the place which Vilbig had not touched before returning to do the paving was 250 or 300 feet long and that the grade there had to be taken down about four feet. The evidence does not disclose how much of the work claimed as an extra was done in bringing this area to grade. Bandy recognized that there was some washing and rutting during the ten-week period, but the amount of rough grading necessitated thereby cannot be determined from the record.

The evidence is conflicting, and the trial court was entitled to conclude that most of the additional rough grading was occasioned by Vilbig's failure to bring the streets to within .2 foot of grade before leaving in March. Once that conclusion is reached, there is nothing to show how much of the alleged extra work was made necessary by grade disturbances occurring after the initial grading was done. With the record in this condition, it cannot be said that the denial of any recovery on the claim was erroneous as a matter of law.

The necessary engineering work in connection with Contract 169-B was to be done by Leavell. According to the evidence, this involved the setting of slope stakes at 50-foot intervals outside the curb lines. After these stakes were set by Leavell's engineer, Montoya, Vilbig placed grade stakes in the curb lines and elsewhere in the streets. To set the grade stakes properly it was necessary to read the slope stakes and then measure out and up or down to establish the grade of the street. The transferring of grade from slope stakes to grade stakes is not regarded as engineering, but is referred to in the trade as ...