Irrigation Const. Co. v. Motheral Contractors, Inc., 1573

• Decision Date: 13 March 1980
• Docket Number: No. 1573,1573
• Citation: 599 S.W.2d 336
• Parties: IRRIGATION CONSTRUCTION COMPANY, Appellant, v. MOTHERAL CONTRACTORS, INC., Appellee.
• Court: Texas Court of Appeals

Page 336

599 S.W.2d 336

IRRIGATION CONSTRUCTION COMPANY, Appellant, v. MOTHERAL CONTRACTORS, INC., Appellee.

No. 1573.

Court of Civil Appeals of Texas, Corpus Christi.

March 13, 1980.

Rehearing Denied April 30, 1980.

Terry D. Key, Law Offices of Tom Wilkins, McAllen, for appellant.

William E. Corcoran, McAllen, for appellee.

OPINION

BISSETT, Justice.

This is a suit by Motheral Contractors, Inc., against Irrigation Construction Company to recover the unpaid amount of money allegedly due under a written contract. Following a trial to the court, judgment was rendered that plaintiff recover from defendant the sum of $6,136.76 as damages for breach of contract, prejudgment interest thereon in the amount of $1,008.76, attorneys' fees in the sum of $2,381.84, together with interest on the total amount of the judgment from date thereof (May 11, 1979) until paid at the rate of 9% per annum. Irrigation Construction Company, defendant, has appealed.

It is undisputed that on September 29, 1975, the City of Mission, Texas, as owner, and defendant, as general contractor, entered into a written agreement whereby defendant agreed to construct certain drainage improvements for the City. The contract sum was $297,515.00. Included therein was "Bid Item No. 22," which stated:

"Open Ditch Complete as Detailed Lump Sum $30,000." This ditch was 1400 feet in length and was to be dug according to certain plans and specifications concerning slope, grade, depth and width. The route of the ditch began at A and terminated at B on the following drawing, which, however, is not drawn to scale:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The instant suit arose out of problems encountered in the excavating of that portion of the ditch shown on the above drawing as C to B.

It is further undisputed that on January 26, 1976, plaintiff submitted a bid in writing to defendant, which read:

"We are pleased to quote the dragline excavation of the drainage ditch on the referenced project for a lump sum of $18,882.34. Our price does not include engineering, fence locating or any work other than the actual ditch excavation.

Please sign and return to us one copy of this agreement confirming your acceptance."

Defendant added the words "Bid Item No. 22 only" to the letter bid following the word "excavation," dated it February 6, 1976, and sent an executed copy thereof to plaintiff, which copy already had the word "ACCEPTED" typed thereon.

Plaintiff then commenced work on the ditch. It had no difficulty in excavating the first 75% of the length of the ditch (that portion A to C on the drawing), but did experience difficulty in excavating the remaining 25% (that portion C to B on the drawing), when it was discovered that the specified slope would not "hold" due to ground water which caused "cave-ins." Plaintiff ceased operations in late March, 1976.

Upon discovery of the problems, the engineer on the project for the City issued a change order to defendant. This change order substituted concrete pipes for the open ditch with respect to that portion of the ditch designated C to B on the drawing. Defendant did not request plaintiff to comply with the change order. Defendant completed the work required by the change order, and the work described in Bid Item No. 22 in the general contract was accepted by the City on May 5, 1976. Subsequently, the City paid defendant the full amount of the contract sum agreed upon for constructing Bid Item No. 22 ($30,000.00), plus $5.00 per lineal foot for the extra expense incurred in installing the concrete pipes.

It was stipulated that there was a contract between the parties. It was further stipulated that the contract price agreed upon was $18,882.34. Defendant admits that the portion of the ditch from A to C was constructed in accordance with the plans and specifications contained in the contract with the City, but contends that the portion C to B was not. It further asserts that it was entitled to use the $6,136.76 for which plaintiff sues in completing the drainage system by performing the work required by the change order. Plaintiff says that the contract between it and defendant called for the actual ditch excavation according to the plans and specifications, and nothing more.

The trial court made and filed findings of facts and conclusions of law. Those pertinent to the action are summarized, as follows:

FINDINGS OF FACT

(1) plaintiff began excavation of the drainage ditch under said contract on or about February 29, 1979 (sic);

(2) plaintiff completed the excavation of the ditch on or about March 31, 1976;

(3) the latter 25% of the ditch failed to hold the required slope and grade due to ground level water;

(4) plaintiff was paid $12,745.86 under the contract;

(5) defendant retained $6,136.76, the balance owed under the contract; and,

(6) the Engineer for the City determined that plaintiff dug the ditch in accordance with the specifications;

CONCLUSIONS OF LAW

(1) Plaintiff and defendant contracted that plaintiff would receive $18,882.34 for "actual ditch excavation";

(2) plaintiff complied with the terms of the contract with defendant; and,

(3) defendant breached the contract "by failing to pay the balance owed to plaintiff."

Defendant first contends that the trial court erred in rendering judgment for plaintiff because "there is no finding of fact that plaintiff was damaged in an amount of $6,136.76." The point has no merit. Defendant, in its pleadings said:

" . . . Defendant, in submitting a bid for the installation of the pipe, took into consideration the $6,136.76 that was owed to Plaintiff pursuant to their contract. . . . "

That statement constituted a judicial admission that it owed plaintiff $6,136.76. Consequently, the necessity of proof relating to the amount of money due plaintiff because of breach of contract was eliminated. Valdes v. Moore, 476 S.W.2d 936 (Tex.Civ.App. Houston (14th Dist.) 1972, writ ref'd n. r. e.); Traders and General Insurance Company v. White, 320 S.W.2d 702 (Tex.Civ.App. Amarillo 1959, writ ref'd n. r. e.). Moreover, assuming, arguendo, that the above-quoted statement in defendant's answer did not constitute a judicial admission, there is ample evidence of probative value in the statement of facts which shows that defendant breached the contract to plaintiff's damage in the amount of $6,136.76. There was no need for the trial court to expressly find that plaintiff "was damaged in the amount of $6,136.76."

Defendant further says that the trial court committed reversible error by making inconsistent findings of fact when it found that plaintiff began excavation of the ditch on February 29, 1979. The inconsistency of which defendant complains is obviously a typographical error. It is an impossible date. Since we have before us in this case a complete statement of facts, the findings of fact are binding on us only if supported by evidence of probative value. Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156 (Tex.Sup.1950); Stephenson v. Perlitz, 537 S.W.2d 287 (Tex.Civ.App. Beaumont 1976, writ ref'd n. r. e.); Anderson v. Anderson, 503 S.W.2d 124 (Tex.Civ.App. Corpus Christi 1973, no writ). There is evidence in the statement of facts that plaintiff commenced excavation of the ditch "approximately" on February 5, 1976. There is no evidence that plaintiff commenced excavation of the ditch on February 29, 1979. The exact date when plaintiff commenced work on the project is of no material importance in the disposition of this appeal.

Defendant next attacks the conclusions by the trial court that the offer of plaintiff to excavate a drainage ditch was accepted by defendant, and that plaintiff complied with the terms of the contract. It also asserts that the trial court erred in finding that the contract to construct an open drainage ditch was performed by plaintiff, and that there was insufficient evidence to support the findings 1) that the ditch was excavated to project specifications; and 2) that plaintiff completed the excavation of the drainage ditch "on or about the 31st day of March (1976)." Defendant contends that Bid Item No. 22 in the contract between it and the City called for the construction of an open drainage ditch with a designed slope and grade, and that when it inserted the words "Bid Item No. 22 only" in the copy of plaintiff's bid letter, that the same constituted a material modification of plaintiff's offer of actual ditch excavation, which amounted to a counteroffer that was not formally accepted by plaintiff. In the alternative, it is argued that plaintiff, by commencing work thereon, did not agree to merely excavate the drainage ditch in question, but to perform the work called for in the general contract between defendant and the City, i. e. "Open Ditch Complete as Detailed." Defendant in support of its position, argues that plaintiff should have brought an action on quantum meruit and not on breach of contract. It reasons that plaintiff should be denied a recovery on its action because it did not "complete" an open ditch as "detailed." We disagree.

There is no evidence that plaintiff saw the contract between defendant and the City prior to the time that defendant introduced a copy thereof into evidence at the trial of this case. In that state of the record, there is no showing that plaintiff should have understood that the inserted words in the letter bid required it to perform the work as contemplated by the contract. Furthermore, the only reasonable construction of the letter bid of January 26, 1976, when examined from its four corners after the insertion of the words "Bid Item No. 22 only," is that the work described in the letter from plaintiff was for actual excavation of the ditch and that such work was limited to the excavation covered by Bid Item No. 22. Plaintiff and defendant did not contract for the construction of an "Open Ditch Complete as Detailed." The action for breach of contract was proper.

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