Shopping Cart (0) items Sign In

Construction Claims Monthly - Devoted exclusively to the problems of construction contracting since 1963

‹ Prev article: 

Post-performance Written Contract Defines Prior Oral One

Saturday, October 01, 2011 08:56 am



Audubon Indemnity Co., v. Custom Site-Prep, Inc., 2011 Tex. App. Lexis 5829 (July 28, 2011)

A written contract introduced terms not discussed in a prior oral agreement, but new consideration wasn't required.

Comanche Contractors, Inc. (Comanche) was the general contractor on an office building construction project. Subcontractor CSP Site-Prep, Inc. (CSP) performed the earthwork to prepare the slab building pad. Later, the project owner sued Comanche over construction problems and property damage that stemmed from the pad, which had not been built according to the plans and specifications. Comanche's insurance carrier, Audubon Indemnity Company (Audubon), paid out the damages and then sued CSP to recover them. A trial court favored CSP's defense that the Comanche-CSP written subcontract, which included an indemnity clause, lacked consideration. But the appellate court disagreed and reversed.

Comanche and CSP had worked together on many projects over the past 10 years and were accustomed to operating under an oral agreement and then signing a "form" subcontract after the work was complete. That's what they did here. The parties didn't discuss indemnity or specify a set price in their oral agreement, nor did they state whether their oral agreement was [...]

› Next article: 
Sign up now for Construction Claims Monthly Online! Your own virtual help desk of must-have techniques, tutorials, and how-to articles.
Join Now Construction Claims Monthly! Close

Dear Valued Customers,

We regret to announce that ProEdTech LLC and all its affiliate brands will cease operations on April 1, 2019.

We are no longer able to fulfill online orders. We will fullfill all DVD and book orders already placed.

Customers of canceled webinars and subscription products may request a refund at (800) 223-8720 or You must do so by April 1, 2019.

Thank you for your business and loyalty over the years. We sincerely apologize for any inconvenience caused.

Best regards,
The ProEdTech Team