Ben C. Jones & Co. v. Gammel-Statesman Pub. Co.

• Decision Date: 24 May 1911
• Citation: Ben C. Jones & Co. v. Gammel-Statesman Pub. Co., 141 S.W. 1048 (Tex. App. 1911)
• Parties: BEN C. JONES & CO. v. GAMMEL-STATESMAN PUB. CO. et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

141 S.W. 1048

BEN C. JONES & CO. v. GAMMEL-STATESMAN PUB. CO. et al.^†

Court of Civil Appeals of Texas. Austin.

May 24, 1911.

On Motion for Rehearing, December 20, 1911.

Appeal from District Court, Travis County; George Calhoun, Judge.

Action by Ben C. Jones & Co. against the Gammel-Statesman Publishing Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.

See, also, 100 Tex. 331, 99 S. W. 701, 8 L. R. A. (N. S.) 1197.

N. A. Rector and T. H. McGregor, for appellant. Gregory & Batts, J. M. Patterson, and James H. Robertson, for appellees.

Findings of Fact.

JENKINS, J.

(1) In 1901 Ben C. Jones & Co., appellants herein, had a contract with the state of Texas to publish the current reports of the Supreme Court, the Court of Criminal Appeals, and the Courts of Civil Appeals. In that year H. P. N. Gammel obtained a like contract with the state, and also a contract to reprint the "old reports," by which was meant the Supreme Court Reports, up to and including volume 73. On October 31, 1901, Jones & Co. surrendered their contract with the state, and entered into a written contract with the Gammel Book Company, a corporation, to whom Gammel had transferred his said contract, as follows: "The State of Texas, County of Travis. Know all men by these presents that this contract and agreement made and entered into this 31st day of October, 1901, by and between the Gammel Book Company, a body politic and corporate, duly incorporated under the laws of the state of Texas, parties of the first part, and Ben C. Jones & Company, a firm composed of Ben C. Jones, V. A. Fenner, and Robert H. Cousins, parties of the second part, witnesseth: That the parties of the second part agree and hereby bind themselves to print, bind, and deliver unto the parties of the first part all the current volumes of reports, being the decisions of the Supreme Court, Court of Criminal Appeals, and the Court of Civil Appeals of the state of Texas, and known, respectively, as the Texas Supreme Court Reports, Texas Criminal Appeals Reports, and the Texas Civil Appeals Reports. And the parties of the second part further agree and bind themselves to wrap each volume of the aforesaid reports in one cover of heavy wrapping paper, the same to be sealed, and with printed end labels showing what volume it contains. That the parties of the second part also agree and hereby bind themselves to make electrotype plates of each page of the aforesaid reports; and the said books shall be printed, bound, and finished as per the specifications contained in the existing contract between the state of Texas and the said parties of the second part, subject to the approval of the expert printer of the state of Texas, or the printing board of the state of Texas. That the standard size of each volume of said reports shall be as required by the statute consisting of 768 pages per volume; and, in the event any of said reports shall exceed in size the standard volume, the price as hereinafter provided for shall be increased pro rata per each volume, and, if any of said reports shall contain less pages than the standard, then the same pro rata shall be allowed. By pro rata is meant the price per page of each standard volume of 768 pages. That in consideration of the delivery of one thousand (1,000) finished and approved copies of each of the aforesaid reports to the parties of the first part, and the further delivery of all the electrotype plates necessary for each volume to the Secretary of State at the capitol building of the state of Texas, carefully wrapped and packed in a substantial box, plainly marked with number of plates and the report said plates are for, the parties of the first part agree and hereby bind themselves to pay to the parties of the second part in cash for each one thousand (1,000) copies of each report and the necessary electrotype plates therefor, delivered as aforesaid, the sum of two thousand and fifty-four dollars and fifty cents ($2,054.50) and the further sum of 97½ cents for each additional copy in excess of the one thousand original copies, provided such excess is printed at the time with original order. And, in the event said parties of the first part should desire copies of any reports to be printed from the electrotype plates owned by the state, the parties of the second part agree and hereby bind themselves to furnish and deliver the said copies to the parties of the first part as follows, to wit: For 100 copies and over, $1.67 per copy. For 150 copies and over, $1.40 per copy. For 250 copies and over, $1.19 per copy. For 500 copies and over, $1.05 per copy. For 1,000 copies and over, $.97½ per copy. Provided said electrotype plates are delivered to said parties of the second part. And the parties of the second part further agree to print, bind, finish, and make electrotype plates of any back numbers of the Texas Reports, as the parties of the first part may direct, upon the same basis as the current volumes when the conditions are the same; the parties of the first part hereby agreeing to furnish a copy for each of the same. Such work, however, may be limited by the parties of the second part so as not to exceed four volumes per year. That the parties of the second part agree and hereby bind themselves to deliver to the parties of the first part any one report consisting of 1,000 copies and necessary electrotype plates therefor within ninety (90) days after the original copy has been received by the parties of the second part, but with an extension of time for such delay as is allowed the parties of the first part in its contract with the state. And the parties of the second part further agree and bind themselves to push, finish, and deliver the work as per contract between Gammel and the state of Texas, and also bind themselves to pay any and all costs or damages that said Gammel Book Company may be liable for to the state of Texas on account of delay in printing, binding, electrotyping or delivering said volumes, provided said delay is caused or occurs after the original copy is in the hands of the said parties of the second part. That the final proof of each of said reports shall be approved by the official court reporter of the state of Texas. That this contract shall remain in force and be binding for a term of two (2) years from date hereof. Witness the hand of the Gammel Book Company, by its president, Joseph Nalle, and likewise the hand of Ben C. Jones & Company, in duplicate this 31st day of October, A. D. 1901, at Austin, Travis County, Texas. [Signed] The Gammel Book Co., by its President, Joseph Nalle. Ben C. Jones & Co., by Fenner."

(2) On September 24, 1902, appellants sued the Grammel Book Company for the amounts alleged to be due under said contract for publishing volumes 41 and 42 of the Court of Criminal Appeals Reports, volume 91 Supreme Court Reports, and for $600 for work done on volume 25 Civil Appeals Reports. This suit was tried May 4, 1903, and judgment rendered for appellants for the amount sued for.

(3) On July 11, 1904, appellants brought this suit against the Gammel Book Company, the Gammel-Statesman Publishing Company, H. P. N. Gammel, C. F. Gydeson, and A. S. Vandervoort to recover the profits which they alleged they would have made under said contract had they been permitted to publish volumes 95 and 96 Supreme Court, volumes 26, 27, 28, 29, 30, and 31 Civil Appeals, and volume 43 Criminal Appeals, and eight volumes of old reports, alleging breach of contract on the part of Gammel Book Company in failing and refusing to furnish the manuscript for said volumes, conspiracy on the part of the other defendants to prevent appellants from publishing said volumes, and absorption of the assets of the Gammel Book Company by said Gammel-Statesman Publishing Company.

(4) This suit was first tried May 15, 1905, before a jury, and resulted in a verdict and judgment for appellants against said defendants for damages as to one volume, to wit, volume 30 Civil Appeals.

(5) On this trial, May 15, 1905, the trial court held that the contract sued on was an entire contract with provision for performance by installments at different times, but held that it was the duty of appellants to have set up by amendment in the former suit all breaches of said contract known to them which occurred subsequent to the filing of said suit (September 24, 1902) and prior to the trial of same (May 4, 1903), and that said suit was a bar to recovery in this case for all such breaches of said contract as occurred within said dates. This judgment was affirmed by the Court of Civil Appeals.

(6) Upon writ of error, the Supreme Court agreed with the trial court and the Court of Civil Appeals as to the nature of said contract, but held that breaches of said contract occurring after the filing of said first suit and before the trial thereof and not sued upon in said first suit were not barred by said suit, and for the error of the court in so instructing the jury reversed and remanded this case February 6, 1907. 100 Tex. 331, 99 S. W. 701, 8 L. R. A. (N. S.) 1197.

(7) April 15, 1908, appellants filed their first amended original petition, and, in addition to the parties above named, made John H. Kirby, R. L. Batts, B. W. Randolph, the State Printing Company, and the Austin Statesman Company defendants, alleging as against said parties conspiracy and absorption of the assets of the Gammel-Statesman Publishing Company.

(8) In said amended petition, appellants alleged that in 1901, and before the execution of the two-year contract herein sued on, they entered into a verbal contract with the Gammel Book Company to publish the Texas Reports for a period of 20 years, and that said written contract is only a part of said contract, and claim damages, not only on account of not being permitted to print the volumes, the manuscript of which was ready within the two years mentioned in said written contract, but also the profits the...