Jones v. Dumas Development Co.

• Decision Date: 03 April 1950
• Docket Number: No. 6042,6042
• Citation: 229 S.W.2d 936
• Parties: JONES v. DUMAS DEVELOPMENT CO. et al.
• Court: Texas Court of Appeals

Page 936

229 S.W.2d 936

JONES v. DUMAS DEVELOPMENT CO. et al.

No. 6042.

Court of Civil Appeals of Texas, Amarillo.

April 3, 1950.

Rehearing Denied May 1, 1950.

Stone & Stone, Amarillo, for appellant.

Morgan, Culton, Morgan, Britain & White, Amarillo, for appellees.

PITTS, Chief Justice.

This is a suit for damages for alleged breach of contract filed by appellant, Troy Jones, against appellees, Dumas Development Company, a corporation, and E. B. Miller. Appellees answered by special exceptions and a general denial subject to the exceptions. The trial court sustained appellees' special exceptions. Appellant refused to amend his pleadings after which the suit was dismissed by the trial court and he perfected his appeal to this court.

The suit involves the proper construction of a written contract executed by the parties on January 12, 1949, as pleaded by appellant. Appellant, called 'contractor', agreed in writing with appellees, called 'owner', to build 45 houses in Dumas, Texas, on lots owned by appellees. Under the terms of the contract as pleaded appellant agreed to furnish the material, provide labor and supervise the construction of the houses according to plans and specifications previously agreed upon between the parties. All costs and expenses incurred in the process of construction were to be detailed in a set of books kept in joint custody of the parties. After the completion and acceptance of each house appellant was to be reimbursed by appellees for his expenses incurred in connection therewith and paid in addition thereto the sum of $325 for each house. The last paragraph of the contract referred to as Article IX, out of which this controversy arose, makes the following provision: 'Owner shall have the right to discontinue construction hereunder at any time deemed expedient by paying to contractor all of his costs accrued to date and in addition the prorata portion of any fees earned by contractor, and for the purpose of this paragraph costs are defined as any and every expense incurred by contractor with the construction herein provided for.' Appellant further pleaded, in effect, that he held himself ready to perform under the terms of the contract when re received a letter from appellees written by E. B. Miller, President Dumas Development Company, of date May 14, 1949, before any construction began advising him as follows: 'This is to advise you that I desire to exercise my right to discontinue operations under said contract and not commence any construction thereunder.' Thereafter appellees began the construction of the houses themselves and were in the process of building them at the time this suit was filed. Appellant further pleaded that Article IX of the contract is ambiguous, '* * * and that said Article IX was intended by the parties to said contract to relieve the defendants (appellees) from the performance of the same only in the event that no market existed for the houses to be constructed thereunder due to economic conditions or otherwise, * * *.' He further alleged that the attempt of appellees to terminate the contract 'was capricious, lacking in good faith, and wholly without cause.' For all of which reasons he further pleaded that appellees have breached the contract to his damage in the sum of $325 per house, aggregating the total sum of $14,625, which sum he seeks to recover.

Appellees charge, in effect, in their exceptions to appellant's pleading that such a pleading, considered in its entirety, does not allege a cause of action against appellees because it shows on its face that appellees had a right to terminate the contract at will upon paying appellant everything due him under its terms and that appellant's pleading reveals he had not performed any services under the terms of the contract, had not suffered any damages and nothing was therefore due him under the terms thereof. Appellees except further to various pleadings of appellant on the grounds that such are irrelevant and immaterial. All of appellees' exceptions were sustained by the trial court.

Appellant concedes that he is not suing for any pro rata part of fees earned or for any sums of money expended but he is suing only for damages by reason of appellees having breached the terms of the contract. Therefore the latter part of Article IX referring to pro rata part of fees earned or money expended is not material insofar as the parties are concerned in this litigation. The question here to be determined is the meaning of the first part of Article IX, or the following statement which is there made: 'Owner shall have the right to discontinue construction hereunder at any time deemed expedient * * *.' Appellees assert that such a clause authorizes them to terminate the contract at any time they choose upon paying appellant any pro rata part of fees earned by him or for any sums of money expended by him but none was due him in this instance and he has not sought to recover any such but admits he is not suing for such. Appellant asserts, in effect, that the clause in question does not authorize appellees to terminate the contract at will under any circumstances but that the said clause is ambiguous. He further contends, in effect, that it was the intention of the parties by the use of the language in the said clause to relieve the appellees from the performance of the terms of the contract only in the event that no market existed for the houses in question due to economic conditions or otherwise. Appellant also contends that appellees discharged him before any construction of the houses, began, thus implying that the contract was one of employment. We do not consider the contract one of employment. Neither does it appear from the language used by appellees in their notice sent to appellant that they discharged appellant. From the language used in the contract it appears to us to be more of a joint adventure in which both parties planned to have a joint interest in an enterprise out of which they were both expecting a profit. At any rate, it is a contract in which an independent contractor agreed to be his own boss in furnishing material and labor and supervising the construction of the houses in accordance with his best skill and judgment, cooperating with appellees and doing all things necessary for the proper construction and completion of the houses according to plans and specifications previously agreed upon between the parties to the contract. No date was fixed by the terms of the contract for the work to begin and no time limit was fixed for the completion of the houses or any of them. Neither does the contract make any provision for any delay in the construction work because of the lack of an existing market for the houses due to economic conditions or for any other reason, unless the clause claimed by appellant to be ambiguous has such a meaning. The contract provides for reimbursing the contractor and paying him for his services as the work progressed as heretofore stated but the contract further provided that the contractor should not receive a salary or interest on the capital employed in the construction work.

A person seeking to establish ambiguity in a contract is charged with the burden of pleading ambiguity and setting out that part of the contract he contends is ambiguous and he must definitely plead the meaning or the construction of the same as relied on by him. Such must be particularly and definitely pleaded as against special exceptions. Such has been so pleaded by appellant in this case but to contend that the clause, either standing alone or considered together with all the other terms expressed in the contract, has the meaning appellant seeks to give it would be a rather strained construction it appears to us. Appellant contends, in effect, the said clause 'owner shall have the right to discontinue construction hereunder at any time deemed expedient' means that the owner (appellees) shall be relieved from the performance of the terms of the contract in the event no market existed for the houses to be built due to economic conditions or otherwise, and he does not seek to give it any other meaning.

It is not easy to find fixed rules for determining the exact meaning of language used in a contract. It may be safely presumed that contracting parties do not labor through a library to determine if some unusual import has been attached to or some unusual meaning has been given to the use of the words they propose to use to express themselves in writing a contract. They set out the terms of the contract in words and language that come to them at the time endeavoring to express their intentions by the use of such. If there should later be a disagreement about the use and meaning of such language used, the courts, as a matter of law, will construe what they have said in the light that ordinary men would have used and understood such language. One rule for determining the meaning of words used in a contract is well stated by 12 American Jurisprudence, page 758, section 236, as follows: 'Words will be given their ordinary meaning when nothing appears to show that they are used in a different sense and no unreasonable or absurd consequences will result from doing so. Words chosen by the contracting parties should not be unnaturally forced beyond their ordinary meaning or given a curious, hidden sense which nothing but the exigency of a hard case and the ingenuity of a trained and acute mind can discover.'.

It is conceded by the parties that an ambiguous contract is one containing doubtful and uncertain language, one obscure in meaning or having a doubtful meaning...