Landscape Design and Construction v. Harold Thomas Excavating

This litigation concerns a dispute with respect to a subcontract to build a lake at Eastfield College in Mesquite, Texas. Defendant, a general contractor, entered into a written subcontract with plaintiff, a subcontractor, to excavate for the lake. Plaintiff completed the excavation but defendant refused to pay him, claiming that the work was not performed within ten days as required by the written agreement. Defendant claimed offsets for payments made and for damages due to plaintiffs failure to complete excavation within ten days. From a judgment for the plaintiff, allowing a portion of the defendants claim for offsets, the defendant has appealed. We affirm on the ground that the ten day requirement for performance is a covenant rather than a condition precedent to payment.