Page v. Superior Stone Products, Inc.

• Decision Date: 01 March 1967
• Docket Number: No. 11467,11467
• Citation: 412 S.W.2d 660
• Parties: Holland PAGE, Appellant, v. SUPERIOR STONE PRODUCTS, INC., dba Transmix of Taylor, Appellee. . Austin
• Court: Texas Court of Appeals

Page 660

412 S.W.2d 660

Holland PAGE, Appellant, v. SUPERIOR STONE PRODUCTS, INC., dba Transmix of Taylor, Appellee.

No. 11467.

Court of Civil Appeals of Texas.

Austin.

March 1, 1967.

Rehearing Denied March 22, 1967.

Kuykendall & Kuykendall, F. L. Kuykendall, Austin, for appellant.

McKay & Avery, Charlie D. Dye, Austin, for appellee.

O'QUINN, Justice.

Appellee Superior Stone Products, Inc, doing business as Transmix of Taylor, sued appellant Holland Page in district court for an unpaid balance on an account for concrete delivered to a highway paving job in Lee County. In trial before the court without benefit of a jury, judgment was entered for appellee against appellant for $2,582.87 with interest and $1,200.00 attorney's fees.

Appellant appeals contending that the account belonged to Phillips Paving Company, Inc., of which appellant was president, and not to him individually. The basis for appellee's suit is a writing in the form of a letter from Transmix of Taylor dated August 21, 1961, addressed to Holland Page setting out prices for concrete and gravel for the Lee County job. The writing was accepted August 23, 1961, over the signature of Holland Page.

The writing of August 21, 1961, was prepared and signed by J. E. Motheral, president of Superior Stone Products and Transmix of Taylor, and presented by him personally to Holland Page at Page's office in Austin. Page and Motheral discussed and agreed upon changes in the gravel prices which Motheral noted in the writing and initiated on the margin. The writing was then accepted by Page who signed in a space provided at the bottom and dated his acceptance August 23, 1961.

The first paragraph of the writing read, 'This is to confirm our agreement to furnish the following material for the above captioned project.' The caption described the Lee County project on Highway FM 696. The last paragraph of the writing provided, 'This agreement is made and entered into subject only to the award of the contract.' The parties are in agreement that this reference is to award of contract by the State Highway Department on the Lee County job.

There is lack of agreement between the parties as to whether on August 23, 1961, when the writing was completed by acceptance, bids on the highway job had been opened and the low bidder was known. It is undisputed that Holland Page individually did not bid on the job, and that the contract was awarded August 28, 1961, to Phillips Paving Company, Inc., on a bid filed by Holland Page as president of Phillips. Page executed the formal contract with the Highway Department for Phillips and made its performance and payment bonds on the same date.

Motheral testified that he was told by his Taylor office that Page was low bidder on the Lee County job and then talked to Page by telephone before preparing the August 21 letter and taking it to Page's office for his acceptance. There is evidence that normally several days will elapse between opening of bids and award of the formal contract on highway projects, the time between these events being consumed in tabulating bids and preparing written contracts and bond forms.

Holland Page testified that he considered the writing of August 21, 1961, a quotation by Motheral and not a contract for supply of materials; that when he accepted the writing August 23 bids had not been opened, so no one knew who would be low bidder; that after the bids were opened, about August 26 or 27, motheral called Page by telephone and said he had learned Phillips was low bidder and Transmix of Taylor would like to supply Phillips with materials on the Lee County job; and that Page informed Motheral the Phillips superintendent would get in touch with Transmix about materials. Page also testified that all bills were submitted to Phillips, none to Page, and that all bills paid were paid by Phillips, none by Page .

Motheral testified that the first bill for materials was submitted to Holland Page who called Motheral by telephone and told him to send statements to Phillips Paving Company; that he asked Page who Phillips was and Page replied it was a small company that was going to do the work; that this was the first information Motheral had that Phillips had anything to do with the contract; that he complied with Page's request and sent all subsequent statements to Phillips.

Soon after completing the Lee County project, payments by Phillips to appellee ceased, leaving an unpaid balance for concrete and for gravel. Appellee filed a claim for the gravel account which was paid by the bonding company, but a claim for the concrete account, the subject of this case, was filed too late for payment.

Motheral prepared a promissory note for execution by Holland Page individually in the amount of the unpaid concrete account and presented it in person for signature. Page then advised Motheral that he regarded the account a debt of Phillips and not his own and refused to sign the note. Page did agree to make a note for Phillips which Motheral prepared and returned to Page who signed it as president of Phillips. After the note matured a year later and was not paid, appellee brought this suit, tendering the promissory note through the district clerk, and suing on the original contract for material furnished.

Trial was before the court without a jury, and there are no findings of fact or conclusions of law. This Court has the duty to affirm the judgment if there is evidence to support it on any theory of the case, and to resolve every issue raised by the testimony in support of the judgment. 4 Tex.Jur.2d, Appeal and Error-Civil, sec. 747, and cases cited. The Court must resolve any doubts as to facts raised by the evidence in support of the judgment and must adopt any view of the law which the trial court could have applied under the pleadings and evidence to support the judgment. In other words, if there is any theory on which the Court can affirm the judgment, the Court has the duty to affirm. 4 Tex.Jur.2d, Appeal and Error-Civil, sec. 806, and cases cited.

The trial court had the duty and responsibility of weighing the testimony and giving the witnesses such credibility as the court deemed justified under all circumstances. Unless the trial court's findings are clearly wrong, this Court cannot substitute its findings for the judgment of the trial court, even if this Court might have decided differently. Friendship Baptist Dist. Assn. v. Johnson, Tex.Civ.App., Fort Worth, 230 S.W.2d 598 (writ ref., n.r.e.); Magana v. Cheverere, Tex.Civ.App., Galveston, 269 S.W.2d 934 (no writ).

Construction of the materials contract is the principal issue to be decided.

A reasonable interpretation must be applied to a contract, and the courts should adopt a construction that is just and fair to both parties according to the intention of the parties at the time they made the contract. Munger v. Waggoner, Tex.Civ.App., Amarillo, 260 S.W. 696 (writ.ref.); 17 Am.Jur.2d, Contracts, Sec. 252, p. 646.

The parties place opposing constructions on that provision of the materials contract making it 'subject only to the award of the contract.' They agree this refers to award of a contract by the Highway Department on the Lee County job. Appellant insists the reference must be limited to award of the contract to Holland Page individually, and contends that since the award was to Phillips, Page cannot be held under the materials contract.

Holland Page did not bid individually on the Lee County job and knew at the time he contracted with appellee for sand and gravel he would not bid on the project except for Phillips. If Page did not bid on the job, naturally he could not become eligible for 'award of the contract' by the Highway Department. Under appellant's view of the condition in the materials contract, there was no possible way for Holland Page to carry out the materials contract made with appellee five days before the highway contract was awarded.

A contract will be construed to mean something, rather than nothing at all, and to have a meaning definite enough to show the parties intended their agreement to be mutually binding and effective. Portland Gasoline Co. v. Superior Marketing Co., 150 Tex . 533, 243 S.W.2d 823.

It is well-settled law in Texas that if there is some reasonable construction to render a contract valid and enforceable, the courts will not presume that the parties intended to call for an impossible condition precedent as a test of performance. On the contrary, a construction rendering performance possible will be adopted unless a different construction is wholly necessary. Portland Gasoline Co. v . Superior Marketing Co., supra; City of El Campo v. South Texas Nat . Bank, Tex.Civ.App., San Antonio, 200 S.W.2d 252 (writ ref.).

Appellant contends that the paragraph in the materials contract providing that the agreement was 'subject only to the award on the contract' constituted a condition precedent to any personal liability on the part of Page and meant the condition was not met without award of the highway contract to Page. If this is correct, then Holland Page made a contract with appellee for material to be used on a job he never expected would be awarded him because he did not intend to bid on it. In fact, under evidence the trial court had a right to rely on to support the judgment, at the time Page was making a contract for material on the Lee County project, the time for submitting bids had passed and Phillips was known to be the apparent low bidder.

Under appellant's contention, it would have been impossible for the parties to perform the materials contract. This theory would place appellant in the position of making the contract knowing that the condition could not be met, since he did not intend to bid individually on the Lee County job. It is unreasonable to view the facts in such manner as...