City of Houston v. L. J. Fuller, Inc.

• Decision Date: 06 March 1958
• Docket Number: No. 13187,13187
• Parties: CITY OF HOUSTON, Appellant, v. L. J. FULLER, Inc., Appellee.
• Court: Texas Court of Appeals

Page 285

311 S.W.2d 285

CITY OF HOUSTON, Appellant, v. L. J. FULLER, Inc., Appellee.

No. 13187.

Court of Civil Appeals of Texas, Houston.

March 6, 1958.

Geo. D. Neal, City Atty., Homer T. Bouldin, Senior Asst. City Atty., Houston, for appellant.

Fulbright, Crooker, Freeman, Bates & Jaworski, Austin C. Wilson, Houston, for appellee.

BELL, Chief Justice.

This suit was brought by appellee to recover $7,431.40 allegedly the balance due under a contract it had performed for the appellant, which called for construction of a sanitary sewer line north of Liberty Road and south of Kashmere Gardens. On trial before the court without a jury, judgment was rendered for the amount for which suit was brought, plus $1,000 as attorney's fees, attorney's fees being allowed under Article 2226, Revised Civil Statutes, because suit was to recover for labor and material furnished.

On December 31, 1952, the contract was duly executed. Generally, it provides that appellee shall within 120 days construct the sewer line according to the plans and specifications which are made a part of the contract. The consideration stated was $67,784. There is a general form of contract, which is printed, which was used by appellant. In this opinion where we use 'general contract' we refer to such printed form as distinguished from the plans, specifications or special provisions, though the latter are by reference a part of the contract to be performed by appellee.

The general contract provided that appellee should furnish all tools, labor, material, machinery and appliances for the construction of the sanitary sewer in accordance with the plans, specifications and drawings of the Director of Public Works and Engineering and should construct such sewer in a good, sound and workmanlike manner. While the stated consideration in the general contract is $67,784, this amount represents the aggregate of the unit prices contained in the bid of appellee. Of course, the bid is expressly made a part of the contract. The general contract provides that when the work has been completed in accordance with the plans and specifications and has been accepted by the appellant, the appellant shall pay appellee 'The unit prices set out in full in the contractor's bid proposal.' At this point, it should be noticed that the bid sheets are composed of the following columns headed in the manner stated:

Kind of Work

Unit of Work

Approx.

Quan.

Unit Price

Both Dollars & Cents in Words.

This Column controls Figures

Total in

The bid sheets are those furnished by appellant and are mimeographed. The first three columns are filled in by the appellant so as to give the bidder the items on which he bids, the unit of measure and the approximate quantity. The last two columns are filled in on the typewriter and are the amounts bid by the appellee--first, his unit bid, and next, the total for each item. The contractor's proposal signed by appellee states that appellee proposes to construct the sanitary sewer and appurtenances in accordance with the enumerated plans and specifications 'for the following unit prices.' The general contract in paragraph 4 provides as follows:

'The contractor has carefully examined the surface of the site and has made sufficient test holes to fully satisfy himself that such site is a correct and suitable one for this work and he assumes full responsibility therefor. The provisions of this contract shall control any inconsistent provisions contained in the specifications. All plans and specifications have been read and carefully considered by the Contractor, who understands the same and agrees to their sufficiency for the work to be done.'

Paragraph 8 of such contract is as follows:

'The plans, profiles and specifications approved by the City Council are a part of this contract. The following are in particular, whether or not the same be attached hereto, a part of this contract and every covenant and undertaking therein is as fully binding upon the parties hereto as if here set forth at length, to-wit: (a) The Notice to Bidders and the Contractor's Bid Proposal, (b) Affidavit of non-Interest on the Part of City Officials, Employees, etc.; (c) Specifications, 'General Conditions,' Form E-10, Revised June 1, 1948, and (d) All of those specifications and drawings which are referred to in the Contractor's Bid Proposal. In case of conflict, any provision of the foregoing document shall prevail over any conflicting provision in any of the specifications, and any provision in a special item or specification pertaining particularly to the project herein referred to shall control over any inconsistent provision of the 'General Conditions."

Paragraph 22 of the 'Specifications--General Conditions' reads as follows:

'Local Conditions.--Bidders shall satisfy themselves as to local conditions affecting the work, and no information derived from maps, plans, specifications, profiles or drawings, or from the Engineer or his assistants, will relieve the Contractor from any work or from fulfilling all of the terms of his contract. The accuracy of the interpretation of the facts disclosed by borings or other preliminary investigations is not guaranteed. Each bidder or his representative should visit the site of the work and familiarize himself with local conditions; failure to do so, when intelligent preparation of bids depends on a knowledge of local conditions may be considered sufficient cause for rejecting a proposal.'

There is a mimeographed sheet entitled 'Special Provisions' and this special provision reads as follows:

'Special Item: 'Sand Stabilized Shell in Trench Bottom'--Where the earth in the trench bottom does not, in the opinion of the engineer, provide a suitable foundation for the sewer, the contractor shall, where ordered by the engineer, place sand stabilized shell in the trench bottom, under, around and over the sewer. Where this work is ordered, the contractor will be provided with a special plan or other instruction showing the depth of this material to be placed below the grade of the sewer and the height of material above the grade of the sewer.'

In the Specifications, Item 3:14, that especially apply to sewer construction is this provison:

'Special plans for construction of sewers in unstable soil will be provided as found necessary during the progress of the work. The contractor will be paid for such work at the unit prices bid for items involved, as concrete, timber, or any other items upon which unit prices have been secured and deemed advisable to use.'

These are the parts of the contract which we deem controlling in the disposition of this appeal.

The appellee in his petition alleges that he examined the construction site and drilled numerous test holes to a point 1 foot below grade depth and this investigation revealed a suitable site for this construction work. It further alleges that as provided in said contract, as work progressed, the City Engineer directed that between stations six plus 30 on Salina Street and 15 plus 11 on Bigelow Street appellee place sand stabilized shell in the trench bottom. The contract did not state how much shell was to be placed in the trench bottom, but left this to be determined as work progressed. Between these stations, when this area was reached, the City Engineer directed that 4 to 6 inches of shell be placed. This was done. Before all of the work was completed, it was discovered that there were five breaks in the line between the stations mentioned. These were not due to defects in workmanship or materials, but were occasioned by heavey rains occurring in May, 1953, that caused water to rise and at the points of the breaks it appears that some distance below the pipes there was quicksand, though such was not known at the time the pipe was laid. The ground was dry when the 4 to six inches of shell was used at the direction of the City Engineer and such amount seemed sufficient. When the water rose in the trench the pipe sagged and caused the breaks. At the direction of representatives (inspectors) of the engineer the appellee corrected these defects and it is for the expense in so doing that appellee sought relief.

The appellant contends that the city is no warrantor that its plans and specifications are sufficient, but that when appellee made the contract he agreed to furnish a finished product in accordance with the plans and specifications for the consideration expressed in the contract, and this appellee is bound to do at all events. All risks, appellant says, are on the appellee. Appellant also says that this is extra work, and recovery cannot be had because it was not directed to be done by writing and that the City Controller had not certified that funds were available to pay for the work, as required by the city charter. Also, the appellant says the city is not liable for attorney's fees under Article 2226.

Appellee contends this is a 'unit price contract' as distinguished from a lump sum contract, and that the rule of Lonergan v. San Antonio Loan & Trust Co., 101 Tex. 63, 104 S.W. 1061, does not apply. Also that this is not extra work, but is work done within the terms of the contract since the 'General Conditions' expressly provide that in sewer construction the amount of stabilizing material to be placed in the bottom of the trench shall be determined as the work progresses and payment should be made therfor at the unit prices. Also a special provision set out that the engineer should order sand stabilized shell in the trench bottom where in his opinion the bottom of the trench itself did not afford sufficient stability. These being matter within the terms of the contract, the original certificate by the Controller suffices. Too, the engineer gave only oral instructions, but this was customary though the contract called for written directions, and under such...