Roylex, Inc. v. Avco Community Developers, Inc.

• Decision Date: 31 October 1977
• Docket Number: No. 1463,1463
• Citation: 559 S.W.2d 833
• Parties: ROYLEX, INC., Appellant-Appellee, v. AVCO COMMUNITY DEVELOPERS, INC., Appellee-Appellant. (14th Dist.)
• Court: Texas Court of Appeals

Page 833

559 S.W.2d 833

ROYLEX, INC., Appellant-Appellee,

v. AVCO COMMUNITY DEVELOPERS, INC., Appellee-Appellant.

No. 1463.

Court of Civil Appeals of Texas, Houston (14th Dist.).

Oct. 31, 1977.

Rehearing Denied Dec. 21, 1977.

George M. Bishop, Houston, for appellant-appellee.

Edmund L. Cogburn, Dow, Cogburn & Friedman, Houston, for appellee-appellant.

COULSON, Justice.

This is an appeal from a breach of contract suit by a subcontractor against a general contractor. The trial court found for the subcontractor and awarded him damages, but refused to award attorney's fees. Both parties appeal. We affirm in part, reverse in part, and reverse and render in part.

Roylex, Inc. (Roylex) was a subcontractor on a townhouse subdivision project, Villa Verde Townhouses, of which Avco Community Developers, Inc. (Avco) was both owner and general contractor. Roylex was employed to build streets, patios, and foundations at the project.

The agreement between Roylex and Avco consisted of three contracts. The first of these was initially oral, but was later reduced to handwriting, and later still was typed. The other two were printed form contracts supplied by Avco and dealt with foundation and street work respectively.

Disputes developed between the parties which they unsuccessfully attempted to resolve. Roylex eventually filed suit for breach of contract, citing Avco's refusal to pay for work that had been done. Avco counterclaimed for damages as a result of Roylex's allegedly defective work. Both parties asked for an award of attorney's fees.

Roylex was successful in convincing the jury that it was entitled to be paid and judgment was entered on the amounts found. Avco appeals from that judgment. The court refused, however, to award Roylex attorney's fees, and computed the liquidated damages due Roylex under the printed form contracts in a manner which Roylex felt was incorrect. Roylex appeals from those parts of the judgment.

We will discuss Avco's points of error first, and then Roylex's.

In points of error one and two Avco attacks the jury's finding that Avco owed Roylex a total of $15,322.91, demonstrating that the award could not have exceeded $13,699.59. In establishing the excess, Avco cites clear and unequivocal statements made by the president of Roylex at the trial. These statements are binding on Roylex. Admissions in testimony of a party to a suit bind him and do not raise fact issues. Stephenson v. O'Neal, 433 S.W.2d 804 (Tex.Civ.App. Houston (14th Dist.) 1968, writ ref'd n.r.e.); see Gevinson v. Manhattan Construction Co. of Okl., 449 S.W.2d 458 (Tex.Sup.1969). Our review of the record convinces us that Roylex could not have recovered over $13,699.59 for unpaid claims exclusive of amounts due for machine rental.

Avco's points of error one and two are sustained and the judgment is ordered reduced by $1,623.32.

Avco next complains that the jury's award improperly included increases for the price of steel. The oral contract between the parties contained a steel price escalation provision but the later, printed form, ones did not. Avco argues that Roylex collected increases for work done under the later contracts. Roylex, in turn, contends that all of the steel price increase charges it Roylex charged Avco for steel price increases on 5264 square yards of street area and 44,226 square feet of slab area at a rate of ten cents per square foot (ninety cents per square yard). Although the evidence is confusing, we believe it was sufficient to justify the jury's conclusion that 4565 square yards of street were poured by Roylex before July 31, 1973, the date of the written contract dealing with street work.

made were for work done under the oral contract. It is clear that any charges made for work done under the later contracts violate the parol evidence rule and are improper.

That answer, however, further reduces the amount which Roylex could recover. Only 4565, not 5264, square yards of street were subject to the ninety cents per square yard steel price increase. The judgment is ordered further reduced by $629.10.

No special issues were submitted on when the slab or foundation work was done. We believe the evidence was sufficient to support the implied finding that it was all done under the oral contract.

In point of error fourteen Avco complains that the invoices by which Roylex sought to prove its claims were erroneously admitted into evidence since a proper predicate for their admission was not laid under Tex.Rev.Civ.Stat.Ann. art. 3737e (Supp.1976-77).

It is clear that before business records may be admitted into evidence it must be shown that the person who either made the record or transmitted the information to another to record had personal knowledge of the act, event, or condition recorded. Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298 (Tex.Sup.1962). Mrs. Teel, Roylex's bookkeeper, testified that she prepared the invoices in question based on information given her by the field supervisor, or someone else present at the project, and that the supervisor occasionally filled out invoices himself. She stated that the field supervisor was at the project site at all times and that because of this he had personal knowledge of the acts or events recorded in each of the invoices.

Avco notes that presence on a jobsite does not necessarily provide a person with personal knowledge of all that occurs there. It remains, however, that the judge drew such an inference from the evidence, and it is elemental that an appellate court will not overturn a trial court's finding of fact simply because different inferences or conclusions could have been drawn from the evidence, or even because the appellate court might have reached a different conclusion from that evidence. Commercial Union Assurance Company v. Foster, 379 S.W.2d 320 (Tex.Sup.1964). Mrs. Teel's testimony was sufficient to support the trial court's implied finding of fact that the requisite personal knowledge existed.

Avco also contends that the invoices were inadmissible since it was not established that they were made at or near the time of the act or event they record. This objection was not, however, made at the time the invoices were admitted into evidence; at the trial Avco limited its objection to the failure to prove personal knowledge. It is well established that grounds specified by an appellant in its objection at trial may not be enlarged on appeal to include other grounds not asserted at trial. E. g., Kaufman Northwest, Inc. v. Bi-Stone Fuel Co., 529 S.W.2d 281 (Tex.Civ.App. Tyler 1975, writ ref'd n. r. e.).

Avco's points of error fourteen and twenty are overruled.

In its fifteenth point of error, Avco argues that it was error to admit the testimony of another subcontractor that he had made a settlement with Avco since this was irrelevant to any issue in the case and was prejudicial. This contention is without merit. The statement was made in response to the question of whether Avco had paid him for his work and was relevant to Roylex's claim that it had left the project because of non-payment. It also tended to establish Roylex's point that Avco's...