City of Big Spring v. Ward

• Decision Date: 03 March 1943
• Docket Number: No. 2447-7998.,2447-7998.
• Parties: CITY OF BIG SPRING v. WARD.
• Court: Texas Supreme Court

169 S.W.2d 151

CITY OF BIG SPRING v. WARD.

No. 2447-7998.

Commission of Appeals of Texas, Section A.

March 3, 1943.

Rehearing Denied March 31, 1943.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Action by Joe E. Ward against the City of Big Spring for breach of a contract to pay plaintiff for engineering services in preparation of plans and specifications for construction of a water system. A judgment of dismissal was reversed and the cause remanded by the Court of Civil Appeals, 161 S.W.2d 821, and defendant brings error.

Judgment of Court of Civil Appeals reversed and that of trial court affirmed.

Coffee & Coffee, of Big Spring, for plaintiff in error.

Bullington, Humphrey & Humphrey, John W. Morse, and Frank Ikard, all of Wichita Falls, for defendant in error.

BREWSTER, Commissioner.

On June 26, 1935, the petitioner, City of Big Spring, and the respondent, Joe E. Ward, entered into the following contract in writing:

"This contract entered into this the 26th day of June, 1935, by and between the City of Big Spring, Texas, hereinafter known as Party of the First Part, and Joe E. Ward, successor to Montgomery & Ward, Consulting Engineers of Wichita Falls, Texas, hereinafter known as Party of the Second Part, for the purposes and conditions mentioned below:

"The Party of the First Part desires to employ engineering services to make an investigation and a report of a water supply covering both an investigation of the present supply and the advisability of additional wells or a storage reservoir, or both the additional wells and a storage reservoir; for preparing the engineering information necessary to supply to the Federal Emergency Administration of Public Works for a loan and grant to construct the desired improvements; so (sic) assembling and reviewing the application (after the legal and financial data have been prepared by the city) before filing with the Federal Emergency Administration of Public Works; and for preparing the plans and specifications and supervising the construction of the improvements, hereinafter referred to as a report, application and proposed improvements.

"Section I

"Party of the Second Part agrees to and shall furnish all engineers and engineering assistance necessary to make a complete investigation and report of a water supply for party of the First Part.

"Party of Second Part agrees to and shall prepare the engineering information necessary to apply to the Federal Emergency Administration of Public Works for a self-liquidating loan to construct the proposed improvements, and shall review and assemble the completed application (after the legal and financial data have been prepared by the city) before filing with the Federal Emergency Administration of Public Works, and further agrees to assist Party of First Part in every way it can in getting the application approved and the loan granted.

"Section II

"Party of Second Part agrees to and shall furnish all surveying and drafting equipment, all stakes, rodmen, engineers and all labor and equipment needed to prepare all necessary plans and specifications for the construction of the proposed improvements and shall prepare and furnish such necessary plans and specifications, and Party of Second Part shall also supervise the construction of the proposed improvements and shall furnish at all times adequate inspection and supervision.

"Section III

"Party of First Part agrees to and shall pay Party of Second Part for services mentioned in Section I above, the lump sum of $2,000.00.

"The Party of the Second Part, or one of his representatives, shall personally present and review the report with the Party of First Part, at which time Party of First Part shall pay to Party of Second Part the amount due for preparing the report.

"Section IV

"Party of First Part agrees to and shall pay to Party of Second Part for engineering services covering the preparation of the plans and specifications and the supervision of construction of the proposed improvements, as hereinabove referred to, the amount of the two and one-half per cent (2½%) of the cost of the work authorized by Party of First Part for making the surveys and preparing the plans and specifications for the work authorized by Party of First Part, and the amount of two and one-half (2½%) of the total cost of the work actually constructed for engineering supervision and inspection.

"Upon obtaining money from the Federal Emergency Administration of Public Works for constructing the proposed improvements, the Party of First Part shall pay to Party of Second Part two and one-half per cent (2½%) of the estimated cost of the work for which surveys, plans, and specifications were authorized by Party of First Part; and after the work has begun Party of First Part shall pay to Party of Second Part each month two and one-half per cent (2½%) of the cost of the work done during the month, and the total amount of monthly estimate of the contractor shall be the basis for calculating the amount due Party of Second Part.

"Section V

"It is understood and agreed by and between the parties hereto that the amount and extent of improvements applied for or made through Federal Emergency Administration of Public Works is left entirely with the discretion of First Party. In event the amount of improvements constructed shall amount to as much as $400,000.00 actual cost, Second Party covenants and agrees that he will reimburse to First Party $1,000.00 of the amount provided in Section III hereof, to be paid to Second Party by First Party; in event the actual costs of construction on improvements amounts to less than $400,000.00, in such event Second Party agrees to reimburse to the City of Big Springs such proportion of $1,000.00 as the actual cost of construction actually made bears to the sum of $400,000.00. It is agreed that the amount so reimbursed by Second Party to First Party shall be taken out of and deducted from the last estimates due to Second Party as provided for in Section IV of this contract. In event there is no actual construction under the terms of this contract, then Second Party shall be under no obligation to pay back to First Party any part of said $2,000.00 provided for in Section III hereof.

"VI

"It is further understood and agreed by both parties of this contract that it shall be in full force and effect from date of execution until the completion of the contemplated improvements, mentioned herein, and the final payment for engineering services, described herein, is made to Party of Second Part."

Thereafter Ward sued the city in the district court of Howard County for $20,876.88 damages for its alleged breach of that contract. The trial court sustained a general demurrer to Ward's first amended original petition and dismissed the suit, after his refusal to amend. That judgment was reversed and the cause remanded by the...