Burck v. Taylor

• Decision Date: 09 April 1894
• Docket Number: No. 170,170
• Citation: 38 L.Ed. 578,152 U.S. 634,14 S.Ct. 696
• Parties: BURCK v. TAYLOR
• Court: U.S. Supreme Court

152 U.S. 634

14 S.Ct. 696

38 L.Ed. 578

BURCK

v TAYLOR.

No. 170.

April 9, 1894.

This was a suit brought by S. B. Burck against Abner Taylor for an accounting for a share of defendant's profits from a certain contract, brought in a court of the state of Texas, and removed by defendant to the United States circuit court. A motion by plaintiff to remand was denied. 39 Fed. 581. A demurrer to the bill was sustained, and the bill dismissed. Plaintiff appeals.

On December 8, 1888, appellant filed his petition in the district court of Travis county, Tex., to recover of defendant the sum of $231,417, alleged to be his share of the profits of the contract made with the state of Texas for the building of its capitol. The suit thus commenced was thereafter removed to the United States circuit court for the western district of Texas, and on October 7, 1889, upon leave obtained, the plaintiff filed an amended bill. To this bill, on November 4th, defendant demurred. On March 4, 1890, the demurrer was sustained, and, the plaintiff electing to stand upon his bill, and declining to amend it, a decree was entered dismissing the same, with costs. From such decree of dismissal the plaintiff appealed to this court.

The matters set forth in the bill are as follows: On January 18, 1882, the state of Texas, by Joseph Lee and N. L. Norton, capitol commissioners, with the approval of O. M. Roberts, governor, made and executed a contract with Matthias Schnell for the erection of the capitol building, according to certain plans and specifications; Schnell to furnish all the material and do all the work, and the state, as the consideration therefor, to convey 3,000,000 acres of land. The twenty-sixth clause of the contract is as follows:

'It is further agreed, covenanted, and stipulated by the party of the second part that this contract shall not be assigned, in whole or in part, by the party of the second part, without the consent in writing of the party of the first part, signed by the governor of Texas and the capitol building commissioners, with the advice and consent of the heads of departments.'

On January 31, 1882, Matthias Schnell, Charles B. Farwell, John V. Farwell, Amos C. Babcock, and the defendant, Abner Taylor, entered into a contract by which Schnell assigned and set over to the other parties an undivided three-fourths interest in said contract. The material portions of this contract are as follows:

'It is hereby agreed by and between the parties hereto that the said Matthias Schnell shall assign and set over, and by these presents does assign and set over, to the parties of the second part, an undivided three-fourths (3/4) interest in said contract, for the purpose that the said parties of the second part may share in any and all the profits that may arise from same, the same as the party of the first part, as their interests may appear, which is hereby agreed to be equal.

'And it is understood and agreed by and between the parties hereto that the parties of the second part are to furnish whatever money may be needed or necessary for the proper construction of said statehouse, or for the execution of the said contract, as the same may be required from time to time.

'It is further agreed and understood by and between the parties hereto that the said Matthias Schnell shall have the management and superintendence of the building and construction of said statehouse from the commencement to its completion, subject to the direction and control of the majority in interest herein, at a salary of five thousand ($5,000) dollars per annum, payable monthly.

* * * * *

'And it is further agreed that the said superintendent shall be personally responsible to the parties of the second part for any loss or damages caused or sustained by reason of his neglect or mistakes in prosecution of his duties as such superintendent, wilfully done.

'And it is hereby understood and agreed that this agreement shall be binding and operative from the date of its approval by the governor of Texas and the heads of departments.'

In accordance with clause 26 of the original contract, the following consent to the assignment was indorsed on the back:

'State of Texas, County of Travis. We hereby consent to the within assignment of an interest in the contract referred to this the eleventh day of February, 1882. [Signed] Joseph Lee, N. L. Norton, Capitol Building Commissioners. O. M. Roberts, Governor.

'We advise and consent to the above consent given by the capitol building commissioners and governor this eleventh February, 1882. [Signed] F. R. Lubbock, Treasurer. J. H. McLeary, Attorney General. W. C. Walsh, Commissioner General Land Office. W. M. Brown, Comptroller.'

'On January 31, 1882, Schnell made an agreement with James M. Beardsley, James S. Drake, and A. A. Burck, which, after referring to the prior contracts, purported to be an assignment and transfer to each of the three of an undivided one-fourth of the one-fourth interest in the contract remaining in Schnell. This contract, although signed and acknowledged by all four of the parties, was without the consent in writing of the state of Texas. Afterwards, and on May 9, 1882, Schnell executed in writing a further assignment in the following language:

'The state of Texas, County of Travis. Know all men by these presents that I, Matthias Schnell, a citizen of Rock Island, in the state of Illinois, for and in consideration of the sum of fifteen thousand five hundred dollars to me now paid, the receipt whereof I do now acknowledge, have transferred, released, and conveyed to Charles B. Farwell, John V. Farwell, Abner Taylor, and Amos C. Babcock, who compose the firm of Taylor, Babcock & Co., all the rights and interest which I have in and under a certain contract made by me with Joseph Lee and N. L. Norton, capitol commissioners, for the construction of a new statehouse for the state of Texas. And I do also, for the consideration hereinbefore expressed, transfer, assign, and release to said parties above named all interests, rights, or claims which I may now or might hereafter assert by virtue of any contract made by me with said parties regarding the construction of said statehouse or the superintendency thereof, and all interest accruing to me from any contract regarding the building of said statehouse for the state of Texas. In testimony whereof I have hereunto set my hand this the 9th day of May, A. D. 1882. [Signed] Matthias Schnell,'—which assignment was duly acknowledged, the assignment accepted in writing, and a written consent indorsed upon it as follows:

'This certifies that we, the governor of Texas and the capitol building commissioners, with the advice and consent of the heads of departments, Consent to the assignment in the foregoing instrument, made to take effect on the filing of the formal adoption of the contract referred to, and the execution and approval of the bond to carry out the same this tenth day of May, A. D. 1882. O. M. Roberts, Governor. Joseph Lee, N. L. Norton, Capital Building Commissioners. F. R. Lubbock, Treasurer. W. M. Brown, Comptroller. W. C. Walsh, Com'r Gen'l Land Office. J. H. McLeary, Attorney General.'

On June 20, 1882, the firm of Taylor, Babcock & Co. assigned and transferred the entire contract to Abner Taylor, the language of the transfer being as follows:

'* * * do hereby transfer and assign, and have transferred and assigned, to Abner Tayfor, the said contract to construct, build, erect, complete, and deliver to the state of Texas a capitol building and appurtenances thereto, according to the plans and specifications therein referred to and made a part thereof, and each and every, all and singular, the rights, profits, and benefits thereunder, the same to be by him carried out in the same manner as provided for in the original contract between the state of Texas and Matthias Schnell as aforesaid,' which assignment was accepted in writing by Abner Taylor, whose acceptance contained this covenant on his part:

'Now, therefore, in consideration of the fact that, by virtue of the transfers and assignments herein set out, I, the said Abner Taylor, have become the contractor with the state of Texas for the building of the capitol aforesaid, and in consideration of the fact that the capitol building commissioners, together with the governor of Texas and the several heads of departments, have consented to the several transfers and assignments aforesaid, and in further consideration of the stipulations, covenants, and agreements set forth in the original contract between the state of Texas and Matthias Schnell, to the profits, rights, and benefits of which I have succeeded by virtue of the said contract and the several transfers and assignments aforesaid, I, the said Abner Taylor, have agreed, covenanted, and bound myself, and do by these presents agree, covenant, and bind myself, unto the state of Texas, through its capitol building commissioners, that I will in every particular carry out, finish, and perform the contract made and entered into by and between the state of Texas and Matthias Schnell, a printed copy of which is hereto attached as aforesaid, in the same manner, style, and method, and according to he said terms, tenor, and effect, that the said Matthias Schnell was originally bound to do, and I hereby adopt the said contract as my own, and assume each and every, all and singular, the obligations therein imposed on the party of the second part as my own, as fully and completely as if they had originally been assumed, incurred, and undertaken by me in person, the said contract, of which the printed copy is hereto attached, being hereby incorporated into this contract, and made a part thereof. And I, the said Abner Taylor, do hereby bind myself, my heirs, executors, and administrators, to keep and perform this covenant, agreement, and contract according to its full intent and meaning in each and every, all and singular, of its parts...