Bastrop & Austin Bayou Rice Growers' Ass'n v. Cochran

• Decision Date: 07 June 1911
• Citation: 138 S.W. 1188
• Parties: BASTROP & AUSTIN BAYOU RICE GROWERS' ASS'N et al. v. COCHRAN et al.
• Court: Texas Court of Appeals

138 S.W. 1188

BASTROP & AUSTIN BAYOU RICE GROWERS' ASS'N et al. v. COCHRAN et al.

Court of Civil Appeals of Texas. Galveston.

June 7, 1911.

Rehearing Denied June 15, 1911.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by J. B. Cochran against the Bastrop & Austin Bayou Rice Growers' Association and others. Judgment for plaintiff, and certain defendants appeal. Reversed and remanded.

Masterson & Rucks and Masterson & Masterson, for appellants.

PLEASANTS, C. J.

This suit was brought by appellee, Cochran, against the appellant association and the individual members thereof, and against the appellee A. N. Fitzgerald, to recover the sum of $1,449.53, alleged to be due by the appellants to said Fitzgerald as a balance upon a contract under which Fitzgerald constructed for appellants a lock and dam across Bastrop bayou in Brazoria county, which claim for said balance Fitzgerald had transferred and assigned to appellee, Cochran, and guaranteed its payment.

The contract between appellants and Fitzgerald, upon which plaintiff's cause of action is based, was made and entered into on March 19, 1908. This contract, in which appellants are designated "the owners" and the contractor, Fitzgerald, "the builder," omitting the preamble and signatures of the parties thereto, is as follows:

"That the builder agrees at his own proper cost and expense, to forthwith begin and in an expeditious and workmanlike manner build, finish, and complete the construction of the lock and dam agreeably to the plans, drawings, and specifications hereto attached, and which said plans, drawings, and specifications are made a part of this contract. It is agreed that all of the old dam, as it now exists, and all work and material therein, shall become the property of the builder and be used by him in the building and completion of said lock and dam, and the said builder agrees, at his own proper cost and expense, to provide all labor and all additional material of whatsoever nature which may be necessary for the proper execution of the work included in this contract according to the true intent and meaning of said plans and specifications, excepting, however, that the said owners, at their own proper cost and expense, shall furnish and provide all necessary right of way and earth for filling purposes. And it is agreed that all tools, implements, buildings, etc., heretofore used in connection with the building of said dam shall become the property of the builder for his own use and benefit for and during the construction of the dam, when same shall be returned and vacated to the owners.

"The said owners, for and in consideration of the faithful performance of the terms of this contract on the part of the said builder, agree to pay said builder the sum of thirty-two hundred and fifty dollars ($3,250) at times and in the manner following: One-third (1/3) of said consideration to be paid to the said builder upon the furnishing and delivery by him at said dam site all tools and machinery and material necessary for the building and completion of said lock and dam, one-third (1/3) of said consideration to be paid to said builder when the work of building and completing said lock and dam shall have been half executed, and one-third (1/3) of said consideration to be paid to said builder upon the full and final completion of said work in accordance with this agreement.

"The said builder agrees to make and enter into a bond with two or more good and sufficient sureties, in the sum of eight hundred and twelve and 50/100 dollars ($812.50), and payable to said owners, conditioned for the faithful performance of the terms of this contract and all of his obligations thereunder; and said owners agree to place the sum of $3,250 in cash on deposit in the Angleton State Bank of Angleton, Texas, for the purpose of meeting the payments due said builder as they may accrue, upon the builder delivering to them and upon their acceptance and approval thereof of said bond, as above mentioned, said sum so placed in said bank to become and be known as the `Dam Fund,' and shall safely preserve the same for the purpose of making payments to said builder, as herein provided, and shall make such payments only when authorized so to do by the written order of said Bastrop and Austin Bayou Rice Growers' Association, signed by the president and the chairman of the executive committee of said association.

"The said builder hereby contracts and agrees to build, finish, and complete said lock and dam in accordance with the plans, drawings, and specifications hereto attached and in accordance with this contract, and to deliver and turn same over to the said owners in such completed condition on or before the 1st day of June, 1908, and time shall be the essence of this contract.

"The builder agrees to do said work in a first-class, workmanlike manner, and the work and material used in the construction of said dam shall be at all times subject to the inspection and approval of the said owners.

"In case of any dispute or disagreement arising between the said owners and the said builder with respect to any work or material or matter growing out of or relating to this contract, same shall be referred to the final determination and award of a committee of three members, one of such committee to be appointed by the owners, one to be appointed by the builder, and the other member of said committee to be appointed by the two so selected, and the award and decision of such committee shall be final and conclusive as to the matters referred to them."

The amended petition upon which the cause was tried alleges the execution of the contract and the full performance by Fitzgerald of all his obligations thereunder, and the transfer by Fitzgerald of his claim against appellants. The account stated in the petition and upon which recovery is sought is as follows:

                Bastrop and Austin Bayou Rice Growers' Association
                Angleton, Texas, to A. N. Fitzgerald, Dr
                As per contract for rebuilding and
                repairing dam......................                 $3,250 00
                By cash, May 1st, 1908.............     $1,083 33
                By cash, May 25th, 1908............      1,083 33
                                                        _________
                                                        $2,166 66  $3,250 00
                To extra rods in dam between piling..                  66 20
                To extra work in lowering floor in
                  lock No. 2.........................                 150 00
                To extra work extra wing wall 20
                  ft. long on south side of cross
                  dam ................................                150 00
                                                        ____________________
                                                        $2,166 66  $3,616 20
                  Total balance ......................  $1,449 54

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