Freeman v. Shannon Const., Inc.

• Decision Date: 05 December 1977
• Docket Number: No. 8818,8818
• Citation: 560 S.W.2d 732
• Parties: 23 UCC Rep.Serv. 867 R. C. FREEMAN, Appellant, v. SHANNON CONSTRUCTION, INC., Appellee.
• Court: Texas Court of Appeals

Page 732

560 S.W.2d 732

23 UCC Rep.Serv. 867

R. C. FREEMAN, Appellant,

v. SHANNON CONSTRUCTION, INC., Appellee.

No. 8818.

Court of Civil Appeals of Texas, Amarillo.

Dec. 5, 1977 On Motion for Rehearing Jan. 3, 1978 Appellant's Second Motion for Rehearing Denied Jan. 30, 1978.

Wayne Bagley, Amarillo, for appellant.

Gibson, Ochsner, Adkins, Harlan & Hankins, James H. Doores, Amarillo, for appellee.

DODSON, Justice.

In this case R. C. Freeman is the appellant herein and the defendant and cross-plaintiff in the court below. Shannon Construction, Inc. is the appellee herein and the plaintiff and cross-defendant in the court below. The parties will be referred to as Freeman and Shannon.

Shannon was the general construction contractor on the Bell Tower Apartment project located in Amarillo, Texas. Shannon, as general contractor, entered into two contractual agreements with Freeman as Freeman partially completed the work specified in the two agreements and certain approved extras thereunder. The agreement provided for periodic payments by Shannon to Freeman as the work progressed under the contracts. However, before all of the work was fully completed under the two agreements, a controversy arose between Freeman and Shannon concerning the amount of money due and owing to Freeman for the partially completed work on the project.

subcontractor for certain cement work on the project. The first agreement in the original amount of $184,034 was dated November 20, 1972 and the second agreement in the original amount of $9,750 was dated October 22, 1973. Each of the agreements provided for extras, when approved according to the terms thereof.

Shannon and Freeman were unable to resolve the controversy to the satisfaction of Freeman, so he abandoned further work on the project. Shannon completed the work under the two agreements. Then Shannon brought this action to recover the amount of $36,610.22 expended in completing the work under the two agreements. Freeman answered Shannon's action by a general denial and then brought his cross-action alleging an unpaid balance of $9,685.50 due him for work completed under the two agreements with Shannon.

The case was tried before a jury on eight special issues submitted by the court. On the verdict of the jury and other specific findings by the court, judgment was entered against Freeman in the amount of $21,704.30 with interest at the rate of nine percent per annum from the date of judgment until paid. From this judgment Freeman appeals to this court. We affirm.

Freeman brings seven points of error to this Court as follows:

Point of Error No. One: The Court erred in granting Plaintiff's (Shannon) Motion in Limine.

Point of Error No. Two: The Court erred in overruling Appellant's (Freeman) objection to Special Issue Number One for the reason that as a matter of law, upon showing of a breach by the Appellee of the contract, the law does not place a responsibility on R. C. FREEMAN to continue his work.

Point of Error No. Three: The Court erred in overruling Defendant's (Freeman) Objection on Special Issue No. Four, because the Court's Charge nowhere restricts the evidence to "charges" that are reasonable and necessary in Amarillo, Texas.

Point of Error No. Four: The Court erred in overruling Appellant's (Freeman) Objection to Special Issue Number Eight for the reason that as a matter of law, a breach has been shown by Appellee of Contract 1364 and Contract 1903, and there was thereafter no legal obligation on the Appellant to proceed. There was not pled, nor has the evidence shown consideration for a new agreement.

Point of Error No. Five: The Court erred in overruling Ground One of Appellant's (Freeman) Motion for Judgment. The Appellant was clearly within his legal rights in stopping work on the contract; and as a matter of law, the Court should have rendered judgment for Appellant notwithstanding the verdict.

Point of Error No. Six: The Court erred in admitting testimony of Michael D. Wieder on his direct examination, over the timely objection of Appellant (Freeman) that Appellee (Shannon) had spent $41,000.00 in connection with the construction of Bell Towers Apartments without laying the predicate that would show in any respect that such expenses were reasonable or necessary.

Point of Error No. Seven: The Court erred in overruling Appellant's (Freeman) Ground Number two of Appellant's Motion for Judgment, for the reason that there was no evidence to support the jury's answer to the second part of Special Issue Number Five.

In response to the special issues submitted to it by the court, the jury found as follows:

(1) That Freeman abandoned his work under the contracts in question prior to the completion of the same;

(2) That, after receiving written notice from Shannon to proceed with his work, Freeman did not return to such work within ten days and complete such work in accordance with the contracts;

(3) That Shannon terminated its contracts with Freeman and employed others to complete such abandoned work;

(4) That Shannon paid $41,000 in order to complete the work of Freeman under the contracts in question;

(5)(a) That the $41,000 amount paid to complete the contracts of Freeman was not reasonable "under the circumstances then and there existing;" (b) however, $25,000 was the reasonable and necessary amount required to complete the contracts of Freeman;

(6) That Shannon had paid Freeman $189,488.30 under the contracts in question;

(7) That no amount of money was due and owing to Freeman by Shannon on the 16th day of February, 1974, under the contracts in question; and

(8) That on or about February 15, 1974, Freeman agreed to complete the contracts in question and thereby waived any breach of such contracts prior to that time by Shannon.

Freeman's second point of error maintains that special issue number two, inquiring as to whether he had abandoned and refused to complete his work, should not have been submitted to the jury.

His fourth point asserts that special issue number eight, asking the jury whether he had waived any breach of the contract by Shannon, should not have been submitted to the jury.

He also complains of the overruling of his Motion for Judgment Notwithstanding the Verdict in his fifth point of error.

In each of these points Freeman relies on the alleged breach of the contract by Shannon to excuse his own non-performance. His contention rests on his claim that Shannon failed to pay $9,685.50 owed to Freeman under the contract. Such non-payment, he insists, is an absolute excuse for his own non-performance.

Freeman's objections to the charge and to the jury's response to issues one and eight are rendered of no consequence by the jury's answer to special issue number seven, which controls the question of whether Shannon breached the contract by not paying Freeman. There the jury found that Shannon owed nothing to Freeman on the date he complains that Shannon breached by not paying an amount due under the contract. Therefore, his non-performance was not excused.

Freeman neither objected to the method of submission of issue number seven, nor challenged the jury's answer to such issue in this court.

Absent a jury finding of a breach by Shannon, Freeman cannot complain that his non-performance was excused.

The jury found in special issue number one that Freeman abandoned his work under the contracts in question prior to completion. In McKnight v. Renfro, 371 S.W.2d 740, 745 (Tex.Civ.App. Dallas 1963, writ ref'd n. r. e.) the court states that the applicable measure of damages is as follows:

When the owner, upon failure of the contractor to perform takes over the job and completes the work himself, he may recover from the contractor the excess of the reasonable and necessary cost of completion over and above the unpaid portion of the contract price. Hillyard v. Crabtree, 11 Tex. 264; Gonzales College v. McHugh, 21 Tex. 256; American Surety Co. of N. Y. v. Lyons, 44 Tex.Civ.App. 150, 97 S.W. 1080; Franks v. Harkness, Tex.Civ.App., 117 S.W. 913; Da Moth & Rose v. Hillsboro Ind. School District, Tex.Civ.App., 186 S.W. 437; American Surety Co. v. Gonzales Water Power Co., Tex.Civ.App., 211 S.W. 251; Standard Accident Ins. Co. of Detroit, Mich. v. Laird, Tex.Civ.App., 81 S.W.2d 271; Ruberoid Co. v. Scott, Tex.Civ.App., 249 S.W.2d 256; 10 Tex.Jur.2d 69.

This same measure of damages applies to the claim of a contractor against a subcontractor for abandonment of the work on subcontracts. See C. McCormick, Handbook of the Law of Damages § 169 (1935). Freeman's points of error two, four and five are overruled.

Freeman complains in point of error number seven that the trial court erred in overruling his second ground for judgment notwithstanding the verdict for the reason that there was no evidence to support the jury's determination that $25,000 was the reasonable and necessary amount required to complete the contracts of Freeman with Shannon.

Freeman contends in his brief " . . . that the reasonable and necessary cost of completing the job in Amarillo, Texas, at the time in question was the amount of $7,386.00 (without credit for materials furnished and work thereon done) . . .." and his testimony at the trial was substantially to the same effect.

Cecil Gehringer was Shannon's superintendent on the job in question. Gehringer testified that when Freeman left the job the so-called building C was not complete. He said, "Inside the building the four laundry rooms were not completed; there was stairs and landings that wasn't completed." And likewise, he testified that "four laundry rooms were not complete" in building B. Also, he testified "there were seven landings and 172 steps, in both buildings, B and C, that had not been poured." Mr. Gehringer testified as to unfinished area by Freeman on Exhibit # 45 which was before the jury. He testified that the tennis court, the pool area, the pool room, the sidewalks and curbs as shown on the exhibit ...