Kirkwood & Morgan, Inc. v. Roach, 13974

• Decision Date: 11 July 1962
• Docket Number: No. 13974,13974
• Citation: 360 S.W.2d 173
• Parties: KIRKWOOD & MORGAN, INC., Appellant, v. J. O. ROACH, d/b/a Roach Rig Building and Construction Company, Appellee.
• Court: Texas Court of Appeals

Page 173

360 S.W.2d 173

KIRKWOOD & MORGAN, INC., Appellant, v. J. O. ROACH, d/b/a Roach Rig Building and Construction Company, Appellee.

No. 13974.

Court of Civil Appeals of Texas, San Antonio.

July 11, 1962.

Rehearing Denied Sept. 12, 1962.

Morrison, Dittmar, Dahlgren & Kaine, San Antonio, for appellant.

Whitlow, Cole & Seerden, Victoria, for appellee.

BARROW, Justice.

This is an appeal from a judgment rendered on a jury verdict in an action brought by appellee, J. O. Roach, d/b/a Roach Rig Building and Construction Company, against appellant, Kirkwood & Morgan, Inc., for breach of an alleged oral contract to construct a roadway referred to as a 'T-head' for use in connection with an oil-well drill-site location. Appellee recovered judgment for 1696 cubic yards of sand at $1.00 each and $565.00 attorney's fees.

Appellant secured a short-term lease on the property in question, which was in a partly flooded coastal area of Calhoun County. It was necessary to build a roadbed and turn-around on the drilling site in this low area, and appellee, Roach, who was in the construction business, solicited this job from Kirkwood, president of appellant. Mr. Kirkwood advised Roach that his general superintendent, J. J. Craig, would subsequently contact Roach and give him an opportunity to make a deal on the job. There is no dispute that Craig and Roach met with Sparks, who was to do the hauling. They met at the area of the proposed drilling site. There is no contention that Craig was not fully authorized to make a contract for the work, but appellant contends that there was no valid contract made at this time.

The jury found substantially as follows: (1) that on or about October 6, 1958, appellee and appellant contracted for the construction of a 'T-head'; (2) that appellee was to begin construction as soon as tidal conditions permitted; (3) that said road would be large enough, in the judgment of appellee, to accommodate usual traffic incidental to drilling an oil well; (4) that said parties would agree on size of the turn-around after the road was started; (5) that the 1696 cubic yards of sand were placed in accordance with the provisions of the contract; (6) that there was no agreement that appellee was to contact Craig on the exact location before the contract was to be effective; (7) that an ordinary prudent person would not have contacted Craig or appellant before beginning work; and (8) that a reasonable attorney's fee would be $565.00.

Appellant presents sixteen points, several of which relate to the sufficiency of the contract. A brief resume of the evidence is necessary. The contract, if any, was made orally by Craig and Roach in the presence of Sparks on their October 6, 1958, visit to the area of the proposed well site. A surveyor's stake had been placed by appellant about 900 feet out in the water and both Roach and Sparks testified that Craig advised that the well site was to be in that immediate vicinity. They testified that Craig stated, if the site was moved, it would be moved that day, and would not be moved over 100 feet. They further testified that appellant was in a hurry to get started and Craig directed Roach to start as soon as the tide permitted. They testified that appellee was to build a roadway large enough, in his judgment, to accommodate drilling trucks, and that he was to be paid at the rate of $1.00 per cubic yard for all sand necessary for the roadway. The actual size of the turnaround on the rig site was to be determined by appellant after the job was started. They testified that they were familiar with the construction of a T-head, and it was usually constructed without plans or specifications. In fact, Sparks subsequently built one for appellant in this area on similar information as given by Craig on this date. Craig, who was no longer associated with appellant, was called as a witness by appellee and confirmed most of the above testimony. He disputed the testimony of Roach and Sparks on whether or not the final location had been selected. He testified that Roach was instructed to call him when he was able to begin work to confirm the exact location. Roach testified and Craig confirmed that Roach had tried to call Craig when he started work and left his number at Craig's house. After working two days, and spreading 1696 cubic yards of sand, he contacted appellant's home office and was advised to stop work as the well site had been relocated.

Appellant contends that there was no meeting of the minds, no mutuality of obligation, and no unconditional acceptance by Craig on behalf of appellant. To be enforceable, a contract must be reasonably definite and certain. It must leave no reasonable doubt as to what the parties intended. 13 Tex.Jur.2d, 699. Here both parties were well acquainted with this type of construction work and knew what was called for in the construction of a 'T-head'. They knew the approximate dimensions, but the actual number of yards of sand necessary would not be known until the contract was completed. It was for this reason that a price per yard was agreed upon. The only item that Craig testified was not determined was the definite location, and the jury found with the appellee on this disputed fact issue. Craig's testimony was that all other matters necessary to make a definite contract were agreed upon at their meeting.

In Gibson v. Texas Co., Tex.Civ.App., 239 S.W. 671, an oral agreement was upheld whereby the parties agreed that the depth of the well should be left to the reasonable judgment of the contractor. Nothing was left to the future negotiation of the parties as in Radford v. McNeny, 129 Tex. 568, 104 S.W.2d 472, cited by appellant.

Here all was agreed upon and understood, except the exact size of the turn-around, which would necessarily be the last thing constructed, and if a larger one was needed it would require only the dumping of more sand, at a cost of $1.00 per cubic yard. All parties were experienced with this type of work and knew what was expected of each party to the contract. Sanderson v. Sanderson, 130 Tex. 264, 109 S.W.2d 744. The rule as to certainty is less strictly applied in a suit for damages for a breach of contract than in a suit for specific...