Electro-Hydraulics Corp. of America v. Special Equipment Engineers, Inc., ELECTRO-HYDRAULICS

• Decision Date: 26 January 1967
• Docket Number: ELECTRO-HYDRAULICS,No. 4552,4552
• Citation: 411 S.W.2d 382
• Parties: CORPORATION OF AMERICA, Appellant, v. SPECIAL EQUIPMENT ENGINEERS, INC., Appellee. . Waco
• Court: Texas Court of Appeals

Page 382

411 S.W.2d 382

ELECTRO-HYDRAULICS CORPORATION OF AMERICA, Appellant, v. SPECIAL EQUIPMENT ENGINEERS, INC., Appellee.

No. 4552.

Court of Civil Appeals of Texas Waco.

Jan. 26, 1967.

Rehearing Denied Feb. 16, 1967.

Cook & Hobbs, Fort Worth, for appellant.

Vinson, Elkins, Weems & Searls, Ross N. Sterling, Houston, for appellee.

OPINION

TIREY, Justice.

This suit was brought by the Special Equipment Engineers, Inc., on a written contract against the Electro-Hydraulics Corporation of America, to recover the balance which plaintiff claimed was owed by the defendant on the contract for design and construction by it of some special equipment. Plaintiff went to trial on its First Amended Original Petition. It is in two counts. The first count is for the damages it claims it sustained by reason of breach of the contract sued upon, and for defendant's wrongful conversion of certain property of plaintiff. The court refused to hear any evidence with regard to the conversion count so here we are concerned only with the allegations in count two. Count two is in the nature of an accounting under the breach of the contract, and plaintiff made affidavit to its pleading. Attached to the pleading is the contract in suit and exhibits A, B, and C, which were made a part of the pleading. Defendant went to trial in its First Amended Original Answer and counterclaim, and this pleading contained a general denial and suit for damages for breach of contract by plaintiff and sought damages in the sum of $21,240.00 on its counterclaim. Plaintiff entered a general denial to the defendant's counterclaim. The cause was tried without the aid of a jury, and the court found in favor of plaintiff in the sum of $6,044.72 and interest and costs, and further found that plaintiff was entitled to recover attorney's fees in the sum of $1815.00, and for costs and denied defendant any relief on its counterclaim. At plaintiff's request the court filed Findings of Fact and Conclusions of Law. We quote the pertinent parts:

'FINDINGS OF FACT

'1. On or about September 20, 1963, plaintiff and defendant, both of which are private corporations duly incorporated under the laws of the State of Texas, entered into a written agreement embodied in plaintiff's Proposal No. 1, dated August 20, 1963, and defendant's Purchase Order No. 5752, dated September 20, 1963, both of which documents are in evidence, by the terms of which plaintiff agreed to design and manufacture or have manufactured certain machinery more fully described in the contract documents, and defendant agreed to pay plaintiff $28,328.00 upon delivery of such machinery to defendant in Fort Worth, Texas, and its assembly, testing, and acceptance by the defendant.

'2. Certain changes in the machinery contemplated were agreed upon by plaintiff and defendant and, subsequently, the finally agreed upon purchase price therefor was settled at $28,767.50.

'3. Plaintiff proceeded to prepare drawings of the machinery contemplated by the contract and on or about October 17, 1963, defendant approved the drawings with some change.

'4. After approval of the drawings by defendant, plaintiff proceeded to procure the materials necessary for the construction of the contemplated machinery. Delays were encountered in the procurement of the materials required, which extended the time of completion of performance by plaintiff beyond the period of the contract. These delays, however, were not occasioned by any act or omission by plaintiff but were the result of failure by defendant to make timely payments as required by the contract.

'5. During the course of procurement of materials for the machinery by plaintiff, plaintiff was paid by defendant a total of $26,068.63.

'6. The contract provides that plaintiff would furnish the services of an engineer for the supervision of erection of the machine in the plant of defendant in Fort Worth, Texas, at a rate of $100.00 per day and expenses. Plaintiff furnished the services of such an engineer who did supervise the assembly and erection of the machine as required by the contract.

'7. The engineer supervising erection of the machine worked 59 days and incurred $958.00 living and travel expenses in the performance of the contract. During this period of time, delays in assembly and erection of the machinery were incurred which were not the fault of defendant. Charges for the services and expenses of the engineer supervising erection and assembly of the machinery during these delays are in the amount of $2,798.00.

'8. The erection and assembly of the machine was completed or substantially completed on or about May 23, 1964, and on that date, the engineer supervising erection of the machine returned to Houston from Fort Worth.

'9. The contract provides that after completion of assembly and erection of the machine there would be an acceptance test witnessed by representatives of plaintiff and defendant and that upon acceptance of the machine by defendant all amounts due under the contract would be payable in cash.

'10. On or about May 25, 1964, the president of defendant requested that the president of plaintiff be present in Fort Worth for acceptance tests of the machine on May 27, 1964. Plaintiff's president informed defendant that he would not be available for such tests until May 29, 1964.

'11. On or about May 27, 1964, plaintiff received notice that defendant intended to ship the machinery to England without conducting the acceptance tests contemplated by the contract.

'12. Over the written protest of the plaintiff, defendant did immediately thereafter sell and ship the machinery to a purchaser in England and thereby prevented the conducting of acceptance tests as contemplated by the contract and precluding plaintiff from an opportunity to rectify any defects in the machinery claimed by defendant.

'13. Thereafter, plaintiff, on numerous occasions, rendered statements to defendant for the amounts claimed to be due under the contract, i.e., balance due upon acceptance of the machinery, $2,698 .87; services and expenses of engineer supervising erection, $6,858.00; less credit for materials purchased by defendant in the amount of $714.15. Demand for the amount thus claimed to be due and owing of $8,842.72 was made by plaintiff in writing, more than 30 days prior to the institution of this suit and no part thereof was paid by defendant.

'14. It became necessary that plaintiff employ an attorney to enforce its claim under the contract and a reasonable attorney's fee in this action would be $1,815.00.

'CONCLUSIONS OF LAW

'1. Plaintiff performed or substantially performed its contract with defendant so as to become entitled to all amounts due under such contract.

'2. Defendant breached its contract with plaintiff in failing to conduct acceptance tests as contemplated thereby and in failing to pay plaintiff the amounts due thereunder.

'3. By its acts, defendant accepted the performance or substantial performance of plaintiff in designing and constructing and supervising the erection of the machine contemplated by the contract.

'4. Defendant is indebted to plaintiff in the amount due under the contract i.e., $8,842.72, less the amount charged for services of the engineer supervising erection during delays in assembly and erection not caused by defendant, i.e., $2,798.00, or $6,044.72 with interest thereon at six percent (6%) per annum from May 27, 1964, plus a reasonable attorney's fee of $1,815.00.'

Appellant assails the judgment on 7 points. They are substantially to the effect that the Court erred:

(1, 2 and 4) In rendering judgment in favor of appellee for the full amount of the...