Simmons & Simmons Const. Co. v. Rea

• Decision Date: 14 December 1955
• Docket Number: No. A-5205,A-5205
• Citation: 155 Tex. 353,286 S.W.2d 415
• Parties: SIMMONS AND SIMMONS CONSTRUCTION CO., Inc., Petitioner, v. W. L. REA, d/b/a W. L. Rea Construction Co., Respondent.
• Court: Texas Supreme Court

Page 415

286 S.W.2d 415

155 Tex. 353

SIMMONS AND SIMMONS CONSTRUCTION CO., Inc., Petitioner, v. W. L. REA, d/b/a W. L. Rea Construction Co., Respondent.

No. A-5205.

Supreme Court of Texas.

Dec. 14, 1955.

Rehearing Denied Feb. 22, 1956.

Powell, Wirtz, Rauhut & McGinnis, Robert C. Duke and William A. Brown, Austin, for petitioner. North, Blackmon & White, Corpus Christi, for respondent.

CALVERT, Justice.

Suit was by petitioner against respondent for damages for breach of contract. The trial court rendered judgment for petitioner. The Court of Civil Appeals reversed and rendered judgment for respondent. 275 S.W.2d 747, 750.

Respondent was a general contractor holding a contract with the United States government for construction of certain improvements at Foster Air Force Base. Much of the work was to be performed through subcontractors. Petitioner bid on the outside electrical work. In a conference held on July 22, 1952 between petitioner's general manager, Mr. Jones, and respondent's general manager, Mr. Bonvillain, petitioner's offer to do the work was accepted and the parties discussed and agreed on the essential terms of the subcontract. Mr. Bonvillain then reduced the agreement to writing, with several copies, and gave all copies to Mr. Jones.

The writing was in the form of a formal contract. It contained a provision requiring a performance bond to be furnished by petitioner 'within five days from date of signing', and concluded: 'In Witness Whereof the parties hereto have executed this agreement, the day and year first above written.' Beneath this recitation places were provided for both parties to sign and swear to the instrument.

In response to a question of what Mr. Bonvillain told him when he gave him the written instrument, Mr. Jones answered: 'He told me to take them, they were in several copies, take them with me, and obtain a bond, have the contract signed, the documents signed, on behalf of our organization, place with it the bond(s) so obtained, and return it to the W. L. Rea Construction Company for signature.' Asked if Mr. Bonvillain said anything about starting to work, Mr. Jones answered: 'He said to be available to start work when the materials were had.'

Mr. Jones took all copies of the instrument and on July 26th, signed and swore to them as directed, procured a performance bond, and mailed the bond and the copies of the instrument to respondent as directed. Three days later respondent wrote a letter to petitioner returning the bond and the instruments, unsigned, stating that it would be impossible for respondent to enter into the contractual agreement.

In its first amended original petition on which petitioner went to trial it alleged the facts and circumstances surrounding negotiations between the respective agents of the parties and the preparation of a written instrument on July 22, 1952 which it contended created a contractual relationship between the parties, but it did not specify whether the recovery sought was for breach of an oral contract of which the writing signed by it through its against but unsigned by respondent was but evidence, or of a written contract effective as such without the signatures of the parties. On this phase of the case the vital special issue submitted to the jury, together with its answer thereto, was as follows:

'Do you find from a preponderance of the evidence that both Jack Jones and W. C. Bonvillain intended that the written contract in evidence as plaintiff's Exhibit No. 1 would become binding on both parties on July 22, 1952, whether or not actually signed by both parties?' Answer: 'Yes.'

The trial court's judgment was based on this jury finding.

The issue is self-contradictory. It assumes the written instrument is a 'written contract' and yet inquires if the parties intended it to be a contract. If it was a contract it was binding on the parties, and if the parties did not intend it to be binding until signed it was not a contract. The parties did not object to the form of the issue, however, and we will assume that the jury and the parties understood the words 'written contract' to mean 'written instrument.'

The Court of Civil Appeals, suggesting that there was 'evidence in the record tending to show that an oral contract might have been entered into', nevertheless reversed on the ground that petitioner's suit for damages was bor breach of a written contract and not for breach of an oral contract and that there was no evidence of probative value that the parties intended the written instrument to be a binding contract in the absence of the signatures of the parties. In so far as petitioner's pleadings are concerned we are satisfied that they would support a recovery of damages for breach of an oral contract and to this extent we may be in disagreement with the opinion of the Court of Civil Appeals. It would serve no useful purpose to analyze the pleadings in this opinion. Our difference with the opinion of the Court of Civil Appeals in the respect mentioned does not mean, however, that we differ with that court's judgment.

At the close of the evidence petitioner might have gone to the jury on either of two theories: (1) that it and respondent had entered into an oral contract and the written instrument, signed by it but unsigned by respondent, was but a convenient memorial of their contract; or (2) that it and respondent had put the terms of their agreement in a written instrument which they intended to be binding as a contract whether or not signed by them. It chose to go to the jury on the latter theory when it accepted, without complaint, the issue submitted by the court. It thus agreed, in effect, that there was no contract between the parties until the terms of the agreement had been incorporated in the written instrument.

To sustain the judgment it must appear there was evidence of probative value to support the finding of the jury on the issue actually submitted. That petitioner chose to rest its case on the theory actually submitted to the jury and realized it must sustain its judgment on that theory is shown by its brief in the Court of Civil Appeals wherein it stated the vital question of fact to be: 'Whether there was a meeting of the minds between Bonvillain and Jones that the contract Bonvillain prepared was to become effective immediately with the signature to be a mere formality or whether signature was considered a condition precedent to consummation of the contract.'

Assuming, then, that petitioner was entitled to his judgment only if respondent breached an unsigned written contract, we must agree with the Court of Civil Appeals that the judgment cannot stand.

The evidence recited in the first part of this opinion is all of the evidence which sheds any light on the intention of the parties at the time the instrument was prepared. Its evidential value can be better analyzed by summarizing it as follows: Mr. Bonvillain and Mr. Jones orally agreed upon the essential terms of a contract which Mr. Bonvillain immediately incorporated in the written instrument calling for the signatures of both parties and providing for the furnishing of a bond 'after signing', which instrument was delivered by Mr. Bonvillain to Mr. Jones with directions to obtain a bond, sign the instrument, return the instrument, with the bond, for the signature of respondent, and be available to begin work when materials were had. Our inquiry is: Does this...