City of Houston v. Howe & Wise

• Court: Texas Civil Court of Appeals
• Writing for the Court: WERLEIN
• Citation: City of Houston v. Howe & Wise, 323 S.W.2d 134 (Tex. Ct. App. 1959)
• Decision Date: 12 March 1959
• Docket Number: No. 13360,13360
• Parties: CITY OF HOUSTON, Appellant, v. HOWE & WISE, Appellees.

Page 134

323 S.W.2d 134

CITY OF HOUSTON, Appellant, v. HOWE & WISE, Appellees.

No. 13360.

Court of Civil Appeals of Texas, Houston.

March 12, 1959.

Rehearings Denied April 16, 1959.

R. H. Burks, City Atty., Houston, Edgar Pfeil and Homer T. Bouldin, Senior Asst. Attys., Houston, for appellant.

Fred Parks and Fred A. Collins, Houston, for appellee.

WERLEIN, Justice.

Appellees, W. F. Smith and Jason Umber, partners under the firm name of Howe & Wise, brought this suit against appellant, City of Houston, to recover compensation or fees for supervisory engineering services in connection with the San Jacinto River Water Supply Project, known as Lake Houston, alleging that they were entitled to be paid for their engineering services 5% of what it cost appellant to do the work, as provided in a written contract entered into by them and appellant on February 1, 1951. They alleged that they were paid $102,663.52 for work actually performed under the contract and that an additional amount of $96,988.62 was due them for engineering services which they allege they were to perform under the contract but were prevented by appellant from performing. They also claimed $13,601.70 for engineering services performed by them but not provided for in the written contract, and $35,000 attorney's fees.

Judgment was rendered on the jury verdict in favor of appellees against appellant for the sum of $110,627.02 with interest and costs, not including attorney's fees which the court held appellees could not recover. Appellant has duly perfected its appeal to this Court, assigning 181 points of error in a brief of 250 pages. Manifestly it will be impossible to discuss all of such points seriatim without extending this opinion beyond all reasonable bounds.

Appellant's Points 1 to 9, asserting that the Trial Court erred in overruling its special exceptions 1 through 6, and 8 through 10, to appellees' petition, are overruled. Contrary to appellant's contention, appellees's second amended original petition, on which the case went to trial, alleges the duties and obligations resting upon appellees with respect to furnishing certificates of performance and certification of estimates and sufficiently alleges performance of such duties and obligations and compliance with the conditions prerequisite to the right of payment. With reference to appellant's exception that appellees did not allege that Frank N. Baldwin, Director of Public Utilities for the City of Houston, had authority to make representations binding on the City, it should be noted that appellees' cause of action was not brought to recover damages for fraud or false representations on the part of Baldwin, but to recover on the contract including that portion thereof which appellant contends was waived by appellees' letter which they say was induced by Baldwin's representations. Appellant cannot claim the benefit of a waiver and in the same breath deny the authority under which it was procured. It is immaterial, however, whether appellant is bound by the acts of Baldwin in such connection since appellees merely seek to set aside the alleged waiver. The allegations in the petition are clear and adequate with respect thereto.

Appellant's next Points of Error, Nos. 179 to 181, assert that the Trial Court erred in permitting appellee W. F. Smith to testify as to his duties and the services performed by him under the contract, and also as to services not contemplated by the contract but which he in fact performed at appellant's request.

Appellant has cited several cases to the effect that in cross-examining appellee Smith in connection with his testimony as to his duties under the contract, it did not waive its objection to his testimony. We agree wich appellant's contention. Appellant, however, in examining its own witness, agree with appellant's contention. Appellant, engineer, interrogated such witness as to the kind of acreage survey which was required by the contract, and as to payment being made on an acreage basis, and other matters with respect to the contract. Appellees contend that since said witness was called to give his opinion as to the proper construction of the contract, any error on the part of the Court in admitting the testimony of Smith was waived. 1 McCormick and Ray, Texas Law of Evidence, Sec. 27, p. 27; Minchen v. First National Bank of Alpine, Tex.Civ.App., 263 S.W.2d 601, writ ref., n. r. e.; Security Banking & Investment Co. v. Flanagan, Tex.Civ.App., 241 S.W. 702, reformed in part and affirmed in part, Tex.Com.App., 254 S.W. 761. It is our opinion that appellant cannot complain because of the introduction of the testimony of appellee Smith with respect to certain duties and work under and outside the contract in view of its introduction of similar evidence by Lockwood. Further, Smith's testimony had to do mainly with his performance under the contract rather than its construction.

We shall consider appellant's Points 10 and 11 with respect to the alleged error of the Court in overruling appellant's motion for an instructed verdict, in connection with other Points, including 14, 15, 18, 19, 22 to 24, 27, 28, 65, 66, 73, 102, 104, 109, 113, 127 to 129, which appellant has grouped together.

Appellant asserts under the above numbered Points that the Trial Court erred in submitting Special Issues Nos. 1, 2, 3, 3-A, 4, 11, 11-A, 12, 17, 17-A, 18 and 19, all of which were answered favorably to appellees, because each of such issues involved a question of law or a mixed question of law and fact. Omitting answers, definitions and instructions, and Special Issues 17, 17-A and 18, which are, except for numbers, identical with Issues 11, 11-A and 12, said Issues are as follows:

'Special Issue No. 1

'Do you find from a preponderance of the evidence that under the terms of the contract entered into between the City and Howe & Wise, there is presently a balance due Howe & Wise under the three clearing contracts?

'Special Issue No. 2

'From a preponderance of the evidence, what amount, if any, do you find is presently due and owing Howe & Wise under the three clearing contracts?

'Special Issue No. 3

'Do you find from a preponderance of the evidence that the written contract called for Howe & Wise to perform services on each and every one of the following pipelines:

'Pan American Pipeline Company, Magnolia Pipeline Company, Sinclair Pipeline Company, Sun Pipeline Company and Texas Pipeline Company.

'Special Issue No. 3-A

'Do you find from a preponderance of the evidence that the City prevented Howe & Wise from doing work as provided in the written contract, if you have so found, on each and every one of the following pipelines:

'Pan American Pipeline Company, Magnolia Pipeline Company, Sinclair Pipeline Company, Sun Pipeline Company and Texas Pipeline Cpmpany.

'Special Issue No. 4

'Do you find from a preponderance of the evidence that such action on the part of the City, if you have so found, as is inquired about in the foregoing Special Issue Nos. 3A, was wrongful?

'Special Issue No. 11

'Do you find from a preponderance of the evidence that the written contract between Howe & Wise and the City provided for Howe & Wise to perform work on the railroad?

'Special Issue No. 11-A

'Do you find from a preponderance of the evidence that the City prevented Howe & Wise from doing work on the railroad as provided, if you have so found, in the written contract?

'Special Issue No. 12

'Do you find from a preponderance of the evidence that such action on the part of the City, if you have so found, as is inquired about in the foregoing Special Issue No. 11 A, was wrongful?

'Special Issue No. 19

'Do you find from a preponderance of the evidence that an acreage survey of each of the three clearing contracts was not within the scope of the contract?'

In determining whether or not the Court erred in submitting said Issues, it becomes necessary to examine the pleadings of the parties and certain provisions of the contract with respect to their definiteness or lack thereof, and also with respect to the contract's completeness or need for evidence in aid of its interpretation. We find that appellees' amended petition adequately and fully sets out their position and contentions as to the work done under the contract and work not included within the contract. The contract itself does not set out in detail or with any degree of definiteness the duties to be performed by appellees, who are called 'Engineer' in the contract. It provides that Engineer's employment is for engineering services incident to the clearing of the reservoir area and the removal, re-arrangement and/or relocation of a railroad and certain pipelines which cross the reservoir area, including the area on which the dam itself will actually rest. It further provides that, 'While for convenience the Engineer's services in connection with the clearing and in connection with the removal of such existing facilities or their re-arrangement, etc., will be separately described, this is a single entire employment for the entire engineering services involved in all of the work herein referred to.' The contract then takes up the 'marking and clearing of reservoir site' and what is described as 'Phase 1' and 'Phase 2'.

Under Section or paragraph B of the contract, entitled 'Supervising the arrangement, removal or relocation of the railroad and pipelines' it is stated that there is a railroad and a large number of pipelines crossing the reservoir area; that agreements had not yet been reached between the City and the owners of such facilities as to the extent to which they may severally remain in their present location with or without any re-arrangement or any additional construction, and no agreement had been reached with respect to the cost of any removal, relocation or re-arrangement of such facilities which will be borne by the City.

The contract then provides:

'The City and the Engineer both realize that the...