Okemah Const., Inc. v. Barkley-Farmer, Inc.

• Decision Date: 17 May 1979
• Docket Number: INC,No. 17398,BARKLEY-FARME,17398
• Citation: 583 S.W.2d 458
• Parties: OKEMAH CONSTRUCTION, INC., Appellant, v., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 458

583 S.W.2d 458

OKEMAH CONSTRUCTION, INC., Appellant, v. BARKLEY-FARMER, INC., Appellee.

No. 17398.

Court of Civil Appeals of Texas, Houston (1st Dist.).

May 17, 1979.

Rehearing Denied June 21, 1979.

David Ford Hunt, Dallas, for appellant.

Smither, Martin & Haggard, J. M. Haggard, Huntsville, for appellee.

Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.

COLEMAN, Chief Justice.

Okemah Construction, Inc., brought this action to recover the money alleged to be due and owing to it by Barkley-Farmer, Inc., under a contract between the parties dated May 5, 1977. The trial was to the court without a jury and resulted in a judgment for the plaintiff in the sum of $27,656.16, plus attorney's fees. The plaintiff was not satisfied with the amount of the judgment and has appealed. Findings of fact and conclusions of law were filed. The judgment will be affirmed as modified.

On May 5, 1977, by a letter agreement, Barkley-Farmer entered into a contract with Okemah under the terms of which Okemah would remove 67 miles of pipe from the ground, cut it into 40 foot lengths and load it onto trailers. Barkley-Farmer agreed to pay Okemah 59 cents per lineal foot of pipe so removed. Okemah agreed to furnish two suitable trailers for use in transporting the pipe and Barkley-Farmer agreed to furnish such additional trailers as might be necessary "to assure a steady and even work flow, weather conditions permitting and taking into account that some 50,000 lineal feet of pipe will be removed from the ground and loaded on trailers each week."

Okemah began work on May 18 or 19, 1977 and, according to its president, Mr. Tinkler, encountered delays in performing the contract due to the shortage of trailers to be furnished by Barkley-Farmer. At Tinkler's request Mr. Farmer, president of Barkley-Farmer, met him on June 4, 1977, to discuss the contract. Mr. Tinkler testified that he told Farmer that Okemah wasn't making money on the contract and that he would have to cut his crew down in order to try to break even on the job. He testified that he told Farmer that if he wanted him to he would pull off the job.

Farmer testified that at the meeting Tinkler made a demand on him for more money and that he agreed to pay 90 cents a foot under the condition that Tinkler deliver 50,000 feet of pipe a week. Tinkler testified that they agreed on a goal of 50,000 feet of pipe a week but that maintaining such a schedule was not a condition to the payment of the 90 cents per foot. Farmer also agreed to furnish more trailers.

After the meeting, the work continued and Farmer furnished more trailers. Okemah added six or seven men, a side boom and a dozer. Farmer paid Okemah at the rate of 90 cents a foot for the pipe already delivered and paid certain invoices, the last being dated June 28, 1977. No payment was made for invoices # 123 through # 131, totaling $141,283.71. This suit was subsequently filed.

The principal point of contention is the validity of the oral modification of the written contract to provide 90 cents per foot rather than the original agreed compensation of 59 cents a foot. The trial judge found that Mr. Tinkler advised Mr. Farmer at the June 4, 1977, meeting that he must be paid 90 cents per lineal foot or Mr. Tinkler would cut down his crew that was removing the pipe. The defendant agreed to pay plaintiff 90 cents per lineal foot of pipe removed and loaded onto trailers. The defendant paid plaintiff at the rate of 90 cents per lineal foot for some pipe removed and loaded onto trailers by plaintiff.

As its conclusions of law the court found:

"(1) The written contract between plaintiff and defendant of May 5, 1977 is a valid and enforceable agreement.

(2) The purported modification of the May 5, 1977 contract is not enforceable by reason of a lack of fresh consideration in that plaintiff promised to do nothing that he was not already bound to do under the written contract."

The trial court has included in the second conclusion of law a crucial finding of fact, that there was no consideration for the defendant's promise to pay increased compensation to the plaintiff for its performance under the contract.

The plaintiff contends that the trial court erred in concluding that the modification of the May 5, 1977, contract is not enforceable by reason of a lack of consideration because the defendant had filed no pleading as required by Rule 94, T.R.C.P., alleging failure of consideration.

A consideration is essential to the validity of a simple contract, whether it be verbal or in writing. A written contract implies consideration. Where a cause of action is based on a written contract, the burden rests upon the defendant to plead and prove a want of consideration to defeat the action. Where a cause of action is based on an oral contract the burden is on the plaintiff to plead and prove a cause of action which would include the element of consideration. Wright v. Robert & St. John Motor Co., 122 Tex. 278, 58 S.W.2d 67 (1933); Chittim v. Martinez, 94 Tex. 141, 58 S.W. 948 (Tex.1900); Stone v. Morrison & Powers, 298 S.W. 538 (Tex.Com.App.1927, holding approved); Signs v. Bankers Life & Casualty Co., 340 S.W.2d 67 (Tex.Civ.App. Dallas 1960, no writ).

There was conflicting testimony as to whether the production of 50,000 feet of pipe was agreed on as a condition to the payment of the increased compensation. By finding no "fresh" consideration, the trial judge necessarily found that the increased production was not a condition but merely a goal. Such a finding is supported by the evidence.

Tinkler's agreement to continue to work toward the goal of 50,000 feet of pipe...