Dodds & Wedegartner v. Reed, 11364.

• Decision Date: 10 February 1934
• Docket Number: No. 11364.,11364.
• Citation: 69 S.W.2d 165
• Parties: DODDS & WEDEGARTNER, Inc., v. REED.
• Court: Texas Court of Appeals

69 S.W.2d 165

DODDS & WEDEGARTNER, Inc., v. REED.

No. 11364.

Court of Civil Appeals of Texas. Dallas.

February 10, 1934.

Rehearing Denied March 10, 1934.

Appeal from District Court, Henderson County; Ben F. Dent, Judge.

Suit by L. P. Reed against Dodds & Wedegartner, Inc. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Bishop & Holland, of Athens, and A. L. Montgomery, of San Benito, for appellant.

Wynne & Wynne and Jack T. Life, all of Athens, for appellee.

BOND, Justice.

Appellant, Dodds & Wedegartner, Inc., by verbal contract employed appellee, L. P. Reed, to supervise the construction of a portion of state highway No. 40, leading from Athens, Henderson county, to Mabank, Kaufman county, on a time salary and a percentage of the net profit realized on the road improvement. Before the road was completed, appellee was transferred from the construction by appellant to another project not involved in this suit. A dispute arose as to the terms of the contract of employment; appellant contends that it employed appellee at a monthly salary of $300 and a 15 per cent. bonus based on the net profit only on that portion of the road which appellee superintended, less the profit on cement; appellee contends that he was employed at a weekly salary of $75 and a bonus of 15 per cent. on the net profit on the entire project from Athens to Mabank, less the profit on cement. The salary is not in controversy; the only issue being as to whether the 15 per cent. bonus was to be paid on the entire project, or only on the portion supervised by appellee.

The trial court submitted the case to the jury on the following pertinent special issues:

"Question No. 1: Do you find from a preponderance of the evidence that L. P. Reed entered into a verbal contract with Dodds & Wedegartner that he was to work for the said Dodds & Wedegartner and receive a salary of $75 per week and a bonus of 15 per cent of the profits made on the road contract on Highway No. 40 in Henderson and Kaufman Counties? Answer `yes' or `no.'

"Question No. 2: Deducting the profits made on account of the drop in the price of cement, what do you find from a preponderance of the evidence was the profit made by Dodds & Wedegartner on the entire work in building the road on Highway No. 40 in Henderson and Kaufman Counties? Answer in dollars.

"If you have answered question No. 1 `yes,' then you need not answer questions Nos. 3 and 4; but if you have answered question No. 1 `no,' then answer questions Nos. 3 and 4.

"Question No. 3: Do you find from a preponderance of the evidence that L. P. Reed entered into a verbal contract with Doods & Wedegartner whereby he, the said L. P. Reed, was to work for the said Dodds & Wedegartner and receive a salary of $75 per week and a bonus of 15 per cent of the profit made on that part of the road contract on Highway No. 40, which he, the said L. P. Reed, actually superintended? Answer `yes' or `no.'

"Question No. 4: Deducting the profits made on account of the drop in the price of cement, what do you find from a preponderance of the evidence was the profit made by the said Dodds & Wedegartner on that part of the road work in Kaufman and Henderson Counties that was actually superintended by the said L. P. Reed? Answer in dollars and cents as you find the facts to be."

Thus, we have the respective contentions of the parties succinctly submitted, giving to the jury in question form the issues raised by the pleadings, which we believe are supported by the testimony. The jury determined that the evidence preponderated in favor of appellee, showed the contract to be based upon the net profits on the entire project, amounting to $28,823, and on such verdict judgment was rendered in appellee's favor for the sum of $4,323.45.

Appellant assigns as error the action of the court in placing in its charge the qualification permitting the jury to answer questions Nos. 3 and 4 only on a negative finding to question No. 1, thus depriving appellant of the affirmative presentation of its defensive issues. The rule in this state is settled that a defendant has the right to an affirmative presentation to the jury of any issue relied upon in his pleadings and raised by the evidence which, if true, would establish a defense to plaintiff's cause of action. Missouri, K. & T. Ry. Co. v. McGlamory, 89 Tex. 635, 35 S. W. 1058; St. Louis S. W. Ry. Co. v. Johnson, 100 Tex. 237, 97 S. W. 1039; Armour & Co. v. Morgan, 108 Tex. 417, 194 S. W. 942; Gammage v. Gamer Co. (Tex. Com. App.) 213 S. W. 930. Yet, we do not believe that the limitation placed upon the jury's action in this instance offends the rule. The charge did not prevent the jury from answering the questions embodying appellant's defense; under such charge, the jury had the right to reject or accept the contention of either party. The situation...