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Burlington Northern Railroad Company v. General Projection Systems. Inc.5/2/2000
t yet begun to run on March 23 because Burlington never gave formal notice to proceed with installation as required by the contract.
The contract required all notices to be in writing and sent by "United States mail, postage prepaid, certified, return receipt requested, addressed to the respective parties hereto at the addresses specified on the face hereof." Additionally, the contract provided that "notices may be sent by other overnight carrier other than certified mail provided confirmation of delivery date can be made." GPS contends the November 18, 1994 notice to proceed was ineffective because:
(1) it was sent by fax instead of overnight carrier or certified mail, and (2) it was sent to John Gregory (GPS's vice- president of sales and program manager for the Burlington project) instead of Wayson (president of GPS).
There is no question, however, that the notice was sent and that GPS received it and attempted to begin working on site. Even though the notice did not comply with the strict requirements of the contract, because GPS received the notice, as a matter of law, Burlington's notice to proceed was effective and in substantial compliance with the terms of the contract. See Texas Util. Elec. Co. v. Aetna Cas. & Surety Co., 786 S.W.2d 792, 793-94 (Tex. App._Dallas 1990, writ denied) (notice sent to and received at office location other than office location specified by contract substantially complied with contract terms) (citing Barbier v. Barry, 345 S.W.2d 557, 562 (Tex. Civ. App._Dallas 1961, no writ)). Because the notice to proceed was effective, the contract required GPS to complete its work by March 1, 1995.
GPS argues on appeal that its breach of contract was excused because Burlington prevented GPS's performance by failing to timely make the rooms ready for installation and by delaying the project through numerous design changes. The jury, however, did not find that GPS breached and that its breach was excused; instead, it found that GPS did not breach the contract. Although a question in the charge asked if GPS's performance was excused, the jury did not reach that question because the question was conditioned on a finding that Burlington did not breach the contract, rather than on a finding that Burlington breached the contract. Because GPS did not obtain a jury finding on the defense of excuse and the defense is not conclusively established, the judgment for GPS on its breach of contract claim cannot be upheld in this appeal on the defense of excused breach. See Peterson v. Dean Witter Reynolds, Inc., 805 S.W.2d 541, 552 (Tex. App._Dallas 1991, no writ); see also Tex. R. Civ. P. 279.
Because the evidence conclusively establishes that GPS did not complete the work by the time specified in the contract and did not timely request an extension of time, there is no evidence to support the jury's finding that GPS did not breach the contract. We sustain Burlington's first point of error. Because liability on Burlington's breach of contract claim was contested and damages are unliquidated, we may not remand for a new trial on damages only, but must remand for further proceedings on the breach of contract claim generally. See Tex. R. App. P. 44.1(b). There is evidence in the record to support the jury's finding that Burlington breached the contract, i.e., Burlington did not give GPS the required three-day written notice of termination. However, because GPS's breach of contract claim is inextricably intertwined with Burlington's breach of contract claim, we conclude that remanding only Burlington's contract claim against GPS would result in unfairness to the parties. See id. Consequently, we also reverse the trial court's judgment as to GPS's br
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