Tower Contracting Company v. Flores

• Decision Date: 15 May 1957
• Docket Number: No. A-6106,A-6106
• Parties: TOWER CONTRACTING COMPANY, Inc., of Texas, Petitioner, v. Hunter FLORES, d/b/a Freeport Machine & Boiler Shop, Respondent.
• Court: Texas Supreme Court

Page 396

302 S.W.2d 396

157 Tex. 297

TOWER CONTRACTING COMPANY, Inc., of Texas, Petitioner, v. Hunter FLORES, d/b/a Freeport Machine & Boiler Shop,

Respondent.

No. A-6106.

Supreme Court of Texas.

May 15, 1957.

Rehearing Denied June 12, 1957.

Bell, Camp & Gwin, Bay City, for petitioner.

Turner, Rodgers, Winn, Scurlock & Terry, Dallas, for respondent.

NORVELL, Justice.

This is primarily a suit for 'extras' incident to a subcontract relating to the repair of the Colorado River Flood Gates on the Intercostal Waterway in Matagorda County. The contracting parties were Hunter Flores and Tower Contracting Company. A district court judgment favorable to Flores was reversed by the Court of Civil Appeals and the cause remanded to the trial court for further proceedings. Tower Contracting Company v. Flores, 294 S.W.2d 266. Both Flores and Tower filed applications for writs of error, Tower's complaint being based primarily upon the terms of the remand. Tower's application being granted, we also granted Flores' application thus bringing the entire case before us. As the parties occupy dual positions in this Court they will be designated by name.

Both Tower and Flores submitted bids for repair work upon the flood gates in accordance with the plans and specifications of the Army Corps of Engineers. Tower was the successful bidder and thereafter sublet certain portions of the work to Flores. We are here concerned with Items Nos. 4 and 7 of the subcontract which was an informal agreement between parties presumably familiar with the nature of the work called for in the plans and specifications upon which the prime contract was based. This instrument is set out in full as an exhibit to the opinion of the Court of Civil Appeals, 294 S.W.2d 276, and need not be repeated here. It is sufficient for our present purposes to set forth the pertinent provisions of the subcontract, together with the applicable clauses of the technical provisions of the plans and specifications.

Item No. 4 of the subcontract reads as follows:

'Removal and Reinstallation of Rotten Timber Fenders.

'According to Technical Provisions, Section 5. Paragraph 5-03, 5-04(a), Timber Only-All new timber shall be furnished on job site by Prime Contractor; (c) bolts and nuts-(1) Galvanizing: 5-05, 5-06, Steel Plate only. Prime contractor shall deliver one steel plate for guide wall to be installed by sub-contractor-$330.00 per M. feet-approximately 28,000 board feet,-$9,200.00.'

The following are the technical provisions of the plans and specifications referred to in Item No. 4 of the subcontract:

'5-03: Removing existing timbers. All damaged and/or rotten timbers shall be removed to the extent shown on the drawings and/or as required, and shall be replaced with new treated pine timbers as specified. Timbers that cannot be readily removed may be cut when approved. All bolts shall be removed by unscrewing the nuts, and nuts and washers shall be replaced on the bolts. Where bolts and nuts are so badly rusted that the nuts cannot be started, removal by cutting will be permitted. All timbers and bolts removed from guidewalls and determined unsalvageable shall become the property of the contractor and shall be completely removed from the site of the work.

'5-04: Materials.

'(a) Timber. All new timber shall be straight, even sawed, sound, and entirely free from all defects which might impair its durability or its usefulness for the purpose intended. Timbers shall bear the official grade mark of the Association under whose rules it is purchased, or in lieu thereof, each shipment shall be accompanied by a certificate of inspection issued by the inspection association, subject in either case to the requirements of Federal Specification MM-L-751c for 'Lumber and Timber, softwood'. Treated timbers shall be accompanied by a certificate from a recognized treatment company, certifying the amount of treatment and the percentage of moisture after kiln drying.

'(b) (Relates to preservatives.)

'(c) Bolts and nuts. Steel for bolts and nuts shall conform to the requirements of Federal Specification FF-B-571a, for 'bolts, nuts, studs and tap rivets (and material for same.)' Bolts and nuts shall be galvanized, and of the type, size, and dimensions indicated on the drawings.

'(1) Galvanizing. All bolts and nuts shall be hotdipped galvanized in accordance with ASTM Designation A123-47.

'(d) (Relates to structural steel.)

'5-05. Timber installation: Timbers shall be carefully framed and/or sawed and scarfed to fit the work in place and then shall be bolted in final position by use of galvanized U-bolts. Bolts for fastening the timbers to other timbers and to the supporting piles shall be galvanized bolts, size and length as required. Timbers shall be notched not more than 1 to insert the U-bolts for attaching timbers to piles as indicated on the drawings. Joints shall have full bearing over entire surfaces without blocking or shimming.

'5-06. Steel plates. The contractor shall furnish and install one steel tangent plate of the size and dimensions and at the approximate location shown on the drawings. The damaged steel plates on the north canal side guide wall of West gate shall be removed and replaced with a new steel plate. Steel for plates shall conform to requirements of paragraph 5-04d.'

The subcontract also contained the following provision which referred to the overall price set for the performance of the work contemplated by the contract and hence was applicable to all of the items contained in the agreement:

'The above price includes all necessary tools, equipment, fuel, scaffolding and any and all other materials, equipment and labor necessary to complete the above work according to plans and specifications for the maintenance and repair to the East Floodgate, Matagorda Locks.'

We agree with the holding of the Court of Civil Appeals that the subcontract and the technical provisions referred to therein must be considered together, E. H. Perry & Co. v. Langbehn, 113 Tex. 72, 252 S.W. 472, and that when so construed no ambiguity appears. Flores claimed that the furnishing of the necessary bolts and nuts for the work and the galvanizing thereof were not covered by the subcontract and hence constituted 'extras'. The trial court awarded him a recovery of $2,986.19 for these items. Any uncertainty which might arise from a consideration of the subcontract by itslef is removed by the obvious references to the specific clauses of the technical provisions of the plans and apecifications. The subcontract contains an exception to Section 5-04(a) of the technical provisions in that it provides that all new timber shall be furnished by the prime contractor. This circumstance, however, forms no basis for a contention that there is a like exception applicable to Section 5-04(c) which relates to bolts and nuts and galvanizing. The agreement being unambiguous, the meaning thereof is determined as...