Goad-Boles Motors, Inc. v. Victoria Paving Co., GOAD-BOLES
| Decision Date | 17 November 1966 |
| Docket Number | GOAD-BOLES,No. 237,237 |
| Citation | 408 S.W.2d 943 |
| Parties | MOTORS, INC., Appellant, v. VICTORIA PAVING COMPANY, Inc., Appellee. . Corpus Christi |
| Court | Texas Court of Appeals |
O. F. Jones, Jr., of Guittard, Henderson, Jones & Lewis, Victoria, for appellant.
Harry F. Maddin, of Cullen, Mallette, Maddin, Edwards & Williams, Victoria, for appellee.
This appeal is from a judgment in a non-jury case wherein the court denied a recovery to all parties.
Appellee, Victoria Paving Company, Inc., sometimes hereafter referred to as 'contractor' sued appellant Goad-Boles Motors, Inc., sometimes hereafter referred to as 'owner' for the unpaid balance of $600.00 on a contract for improvements, consisting of paving and other work, on a lot owned by appellant in the City of Victoria, Texas. Appellant asserted a cross-action for $2,281.50, plus attorneys fees, against appellee for damages allegedly suffered because of appellee's breach of the contract or of the guaranty therein contained. The trial court rendered judgment that neither party recover, from which only owner has appealed. Findings of fact and conclusions of law were made and filed by the trial court as follows:
FINDINGS OF FACT
1. That Victoria Paving Company, Inc. and Goad-Boles Motors, Inc. are both Texas corporations.
2. That Victoria Paving Company, Inc. made a bid in writing on or about July 15, 1964, to clear and top with a two course penetration asphalt treatment a vacant tract of property fronting on Rio Grande Street in Victoria, Victoria County, Texas. I further find that Goad-Boles Motors, Inc. accepted this bid and the same became a written contract with respect to the services to be performed.
3. That the contract price agreed upon was Four Thousand Five Hundred Ten ($4,510.00) Dollars. I further find that at the request of Goad-Boles Motors, Inc., Victoria Paving Company, Inc. expended the sum of Ninety ($90.00) Dollars for additional materials in connection with the contract of July 15, 1964 and that the contract, therefore, was Four Thousand Six Hundred ($4,600.00) Dollars.
4. That before suit was filed on the contract, Goad-Boles Motors, Inc. paid to Victoria Paving Company, Inc. the sum of Four Thousand ($4,000.00) Dollars. That under the terms of the contract I find there was an additional Six Hundred ($600.00) Dollars owing.
5. That on February 25, 1965, Goad-Boles Motors, Inc. wrote Victoria Paving Company, Inc. asking for a bid to re-work the lot in question, raise the grade of the lot and to apply a different topping to the area involved. I further find in this connection that Victoria Paving Company, Inc. did not bid on the second proposal and was under no obligation to do so.
6. That the contract between Victoria Paving Company, Inc. and Goad-Boles Motors, Inc. had a one-year guarantee which had not expired on February 25, 1965, the date Goad-Boles Motors, Inc. requested the bid in the foregoing finding.
7. That at all times from the date of the contract between Goad-Boles Motors, Inc. and Victoria Paving Company, Inc., Victoria Paving Company, Inc. made a diligent effort to satisfy Goad-Boles Motors, Inc. and was doing patch work on the premises involved on February 25, 1965.
8. That Goad-Boles Motors, Inc. entered into an agreement in February of 1965 with Brannon Construction Company to rework the lot in question, to change the grade and to top the surface with a different topping, which topping was more expensive in the industry than the topping contracted for with Victoria Paving Company, Inc.
9. That Brannon Construction Company re-did the lot under its agreement with Goad-Boles Motors, Inc. for Two Thousand Eight Hundred Eighty-one and 50/100 ($2,881.50) Dollars.
10. That it would have cost Victoria Paving Company, Inc. approximately Six Hundred ($600.00) Dollars to complete its contract to the satisfaction of Goad-Boles Motors, Inc. and that this work was done by Brannon Construction Company when it entered into the performance of its agreement of February 1965 with Goad-Boles Motors, Inc.
11. That the contract between Goad-Boles Motors, Inc. and Brannon Construction Company was not necessitated by the failure of Victoria Paving Company, Inc. to perform its obligations under its contract with Goad-Boles Motors, Inc. and that Victoria Paving Company, Inc., therefore, has no obligation to pay any part of the contract price.
I conclude that the above findings of fact are insufficient to sustain the burden of proof of either the plaintiff or cross-plaintiff for judgment against one another and that, therefore, neither party should recover of and from the other and that a take nothing judgment be entered against both parties.
Appellant asserts fourteen points of error, which are briefed and argued together. In substance they make the following contentions: owner met its burden of proof with respect to each element of its cause of action; the evidence is legally insufficient to support findings numbers 10, 11, and the judgment; the evidence is factually insufficient to support findings numbers 10, 11, and the judgment; the court erred in concluding that neither party had sustained its burden of proof, particularly in the light of fact findings; and that the trial court should have made four findings of fact requested by appellant.
Appellee, by two reply points in support of the judgment, contends in substance (1) that appellant failed to show any breach by appellee of the contract, covenant or undertaking, express or implied, and (2) that appellee failed under any measure of damages applicable to the case to establish a right to recovery.
We sustain appellee's reply points and affirm the judgment.
The letter contract between the parties reads as follows:
'Goad Boles Motor Co.
714 E. Rio Grande
Victoria, Texas
The Victoia Paving Co. proposes to do the following item of paving at the Goad-Boles Motor Co. as follows:
To remove all trees, brush and stumps.
To place the surplus excavated dirt on the North-West corner of the block.
To install on a compacted subgrade an eight inch compacted processed gravel base.
To top with a two...
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...two cases where a parking area was allegedly not constructed in accordance with the plans and specifications. See Goad-Boles Motors, Inc. v. Victoria Paving Co., 408 S.W.2d 943 (Tex.Civ.App.--Corpus Christi 1966, no writ); Inwood Construction Co. v. Huntington Corp., 400 S.W.2d 372 (Tex.Civ......