dissenting.
I respectfully dissent. I would define the dispositive issue before this court to be whether the factual situation in the current case falls within the ambit of the implied warranties enunciated in both Humber v. Morton, 426 S.W.2d 554 (Tex.1968) and Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 352 (Tex.1987). I would hold that it does not.
In Humber, this court held that a builder/vendor impliedly warrants to a purchaser that a building constructed for residential use has been constructed in a good and workmanlike manner and is suitable for human habitation. Melody Home, 741 S.W.2d 349, 352. Melody Home expanded the Humber warranty to include an implied warranty to repair or modify existing tangible goods or property in a good and workmanlike manner. Id. at 354. In Melody Home, purchasers of a mobile home brought suit against the manufacturer of their home alleging a breach of implied warranty that repairs would be performed in a good and workmanlike manner. Specifically, Melody Home failed to connect a sink to the drain in one of the interior walls. This failure resulted in a continual leak which damaged the home’s flooring, sheetrock and insulation. Melody Home’s workmen attempted to repair the leak, but succeeded only in causing additional damage. Id. at 351.
The Melody Home and Humber implied warranties are applicable only to construction for residential use and repair or modification of tangible goods or property. I would decline to extend the principles articulated in Humber and Melody Home to encompass an implied warranty for horse training services.
Every contract carries with it the common law duty to perform with care and skill; the negligent failure to meet this implied standard provides a basis for recovery in both tort and contract. Coulson v. Lake L.B.J. Municipal Utility District, 734 S.W.2d 649 (Tex.1987), citing, Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508 (1947). As this court stated in Coulson, there is no discernible difference between a claim that efforts failed to be performed in a good and workmanlike manner and a claim that efforts were negligently performed. Coulson, 734 S.W.2d 649, 651.
*87Archibald had adequate legal grounds upon which to proceed against Act III. Causes of action for negligence and breach of contract were available to him. Archibald failed to obtain the requisite proximate cause finding on his negligence theory and additionally failed to plead a breach of contract cause of action. I do not find Archibald’s failure to prevail under existing remedies to warrant the creation of a new implied warranty.
I would affirm the court of appeals.
CULVER, J., joins in this dissent.