Lanphier Const. Co. v. Fowco Const. Co.
| Decision Date | 03 April 1975 |
| Docket Number | No. 864,864 |
| Citation | 17 UCCRep.Serv. 713,523 S.W.2d 29 |
| Parties | 17 UCC Rep.Serv. 713 LANPHIER CONSTRUCTION COMPANY and Servtex Materials Company, Appellants, v. FOWCO CONSTRUCTION COMPANY et al., Appellees. |
| Court | Texas Court of Appeals |
Richard J. Hatch, Mahoney, Shaffer, Hatch & Layton, Corpus Christi, Bruce
Waitz, Waitz, Bretz & Collins, San Antonio, for appellants.
Ben F. McDonald, McDonald, Spann & Smith, Richard A. Hall, Jr., Branscomb, Gary, Thomasson & Hall, Cecil D. Redford, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appellees.
This is a suit for damages arising from an alleged breach of contract and breach of warranty, express and implied, growing out of the construction of the Alice High School at Alice, Texas. Lanphier Construction Company, the general contractor, brought suit against its sub-contractor, Fowco Construction Company, Inc. and its surety, Fidelity and Deposit Company of Maryland, for damages which Lanphier suffered when the paving material, laid by Fowco, proved to be defective. Fowco and Fidelity, in turn, brought suit against Fowco's supplier, Servtex Materials Company, claiming that it breached both express and implied warranties as to its product. Trial was to the jury on special issues: the jury found that the reasonable and necessary sum which Lanphier was required to spend to remedy the defect amounted to $20,000.00; that Servtex had breached both express and implied warranties and that the sum necessary to correct the defects resulting from these breaches was $20,000.00. The trial court, upon the verdict, entered its judgment that Lanphier recover $20,000.00 from Fowco less a credit to Fowco for $1,200.00 for extra work and less $6,665.00 for the retainage held by Lanphier and that Fowco recover over and against Servtex the sum of $20,000.00. The record is voluminous (over 2000 pages in the Statement of Facts). The case actually represents two separate appeals: 1) Lanphier Construction Company and 2) Servtex Materials Company. Lanphier contends in effect that it was entitled to more money and Servtex contends that it does not owe anything.
Lanphier Construction Company was the general contractor for the erection of a high school for Alice Independent School District, Alice, Texas. The architects on the job were the firm of Swanson, Hiester, Wilson & Boland hereinafter referred to as architects. Lanphier initially sublet the site work to C.R.M. Contractors hereinafter called C.R.M. on January 8, 1969, including the asphalt paving, prepaving the subgrade, site fill, site excavation, curbs and gutter, gutter, precast curbs, stripping, concrete pipe culverts and fine grading site. Fidelity and Deposit Company of Maryland issued a performance and payment bond as surety for C.R.M. C.R.M. began the work and partially performed the job by preparing the subgrade and site excavation. Prior to the laying of the asphalt, C .R.M. defaulted and abandoned the job. Fidelity and Deposit Company of Maryland advertised for bids to complete the defaulted contract and sent out invitations for bids on February 25, 1970. Fowco Construction Company, Inc. hereinafter referred to as Fowco was the successful bidder. In accordance with the requirements of the bond, Lanphier entered into a new sub-contract with Fowco for the completion of the defaulted contract work on March 16, 1970. Fowco was to furnish all labor, material and equipment necessary for the completion of all work that was not completed by C.R.M., the original subcontractor. Fowco's bid on the job was in the amount of $66,652.00. Fidelity and Deposit Company of Maryland issued a performance and payment bond as surety for Fowco.
According to the specifications, Fowco was required to use Hot mix-Hot laid asphalt Type DD on those areas to be paved. Fowco found that the Hot mix-Hot laid material was unavailable at the time the asphalt was needed and requested permission from the architects to use a substitute material. Permission was given allowing Fowco to substitute hot mix-cold laid asphaltic concrete upon the condition that the substituted material would meet Texas Highway Department Specifications 352. Fowco, as a condition to placing its order required of Servtex a notarized certificate that its material would meet such specifications. On April 20, 1970, Servtex delivered said certificate to Fowco which was in turn delivered to the architects. Fowco thereafter ordered 1,900 tons of the asphalt from the Servtex Plant in Comal County, Texas. The material in question was manufactured by Servtex and shipped by rail to Alice, Texas, in five separate shipments beginning on April 18, 1970. The last shipment was received June 10, 1970. The materials were unloaded and stockpiled beside the railroad tracks, then loaded into dump trucks and hauled to the job site. Fowco began laying the material on April 27, 1970, and completed laying it on June 12, 1970. In laying the material, Fowco used three types of machines; a Layton laydown machine; a Barber-Green laydown machine; and a motor grader. Upon completion of the job, Fowco received 90% Of its contract price leaving a retainage of.$6,665.20 due from Lanphier Construction Company. Shortly after completion, the asphalt paved portion of the work began to show defects.
The architects, as agents for the school board, in a letter to Fowco dated September 1, 1970, demanded that Lanphier correct the defects by removing the asphaltic concrete paving then in place in the drives and parking lot; remove all debris from the site; reshoot the base to grades as shown on plans and compact same; apply new prime and tack coat per specifications; and install a new wearing surface of Hot mix-Hot laid equal to 1962 Texas Highway Specifications item 346, Class AA type D. Lanphier gave notice, in accordance with its contract, to Fowco, to redo the work as required by the architects. Fowco refused to redo the job. Lanphier then, without taking any other bids, on September 21, 1970, contracted with Heldenfels Brothers Contractors for the sum of $29,450.00 to take up the existing surface, recompact the base, lay a prime coat and lay a new surface. Heldenfels removed the Servtex asphalt and installed its own asphalt achieving satisfactory results. The evidence showed that as of the date of trial, the asphalt was in satisfactory condition. Lanphier paid Heldenfels the $29,450.00 in accordance with their contract. In addition, Lanphier contracted with Parking Control Company for the restripping of the parking lot and paid them $638.40.
Lanphier then brought suit against Fowco and Fidelity and Deposit Company of Maryland as defendants for the recovery of the aforesaid $30,088.40 ($29,450.00 $638.40) for breach of Fowco's contract. Fowco answered and sued everyone involved. Fowco filed a cross action against Lanphier and Glen Falls Insurance Company (Bonding Company for Lanphier) for the retainage of.$6,665.20 and for $1,200.00 alleged to be extra work. Fowco filed a cross action against Fidelity and Deposit Company of Maryland, alleging that if there were any defects, they were the fault of C.R.M. (sub-contractors) and not Fowco, and impleaded C.R.M. as a third party defendant. In addition, Fowco filed a third party action against Servtex for breach of express and implied warranty of fitness of the materials purchased by Fowco from Servtex. Finally, Fowco impleaded the architects, Swanson, Hiester, Wilson and Boland, as third party defendants, alleging a cause of action against them for negligent design as well as other theories. Fidelity and Deposit Company of Maryland answered and sought recovery over against Fowco for any amount which Lanphier might recover against it and also impleaded Lewis A. Fowler as a third party defendant, seeking a like recovery on his indemnity agreement. The architects went out of the case on their motion for instructed verdict. Trial was to the jury, which returned a special issue verdict in favor of Lanphier for $20,000.00 and against Fowco and Fidelity and Deposit Company; in favor of Fowco, on its third party action against Servtex (who furnished the material), for breach of both express and implied warranties fixing the damages at $20,000.00; and in favor of Fowco on Fowco's cross-action against Lanphier for the recovery of $1,200.00 for extra work. The court then entered its judgment in accordance with the jury's verdict as follows:
(1) In favor of Lanphier against Fowco and Fidelity and Deposit Company for $20,000.00.
(2) In favor of Fowco against Servtex for $20,000.00.
(3) That Lanphier's judgment against Fowco and Fidelity and Deposit Company be credited with the retainage held by Lanphier, in the amount of $6,665.00 and that said judgment be further credited with the value of the extra work in the amount of $1,200.00.
(4) In favor of Fidelity and Deposit Company against Fowco and Lewis A. Fowler, jointly and severally, for the sum of $20,000.00 by way of indemnity with respect to the judgment recovered against Fidelity and Deposit Company of Maryland by Lanphier Construction Company.
From this judgment, Lanphier Construction Company and Servtex Materials Company have perfected their appeals.
'LANPHIER'S APPEAL'
Appellant Lanphier's first point of error is that the trial court erred in its failure and refusal to disregard the jury's answer to Special Issue No. 1, and to grant judgment non obstante veredicto to Lanphier for the full amount of the $30,088.40 sum expended by Lanphier to correct the defective work. Special Issue No. 1 reads as follows:
Find from a preponderance of the evidence the Reasonable and necessary sum of money, if any, required to be expended by Lanphier Construction Company to correct the defective and unacceptable asphalt paving job performed at the Alice High School by Fowco Construction Company.
Answer in dollars and cents, if any.
Answer: $20,000.00'...
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