Faires v. Cockerill

• Decision Date: 17 January 1895
• Citation: 29 S.W. 669
• Parties: FAIRES v. COCKERILL et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

29 S.W. 669

FAIRES v. COCKERILL et al.¹

Court of Civil Appeals of Texas.

January 17, 1895.

Appeal from district court, Fayette county; H. Teichmueller, Judge.

Action by M. Cockerill and other against J. E. Faires and others to recover money paid by them under a contract by which plaintiffs and defendants, as parties of one part, were bound to pay equal proportions, which was in excess of their proportion. From a judgment for plaintiffs, defendant Faires appeals. Modified and rendered.

Appellees, M. Cockerill, J. M. Harrison, and Lane & Arnim, brought this suit against appellant, Faires, and seven others, as the signers with plaintiffs of a certain contract, of date May 18, 1887, attached to the petition, between the San Antonio & Aransas Pass Railway Company, on one part, and plaintiffs and defendants, just referred to, on the other, by which the company bound itself to build its road through Fayette county and the town of Flatonia, and the parties of the other part (plaintiffs and defendants) agreed to pay a bonus of $6,000, and secure the right of way through the county and depot grounds at Flatonia, paying all sums necessary for the purpose, as well as expenses of all condemnation proceedings. The plaintiffs alleged that this contract had been carried out on both sides, but that, in doing so, plaintiffs had advanced and paid more than their proportion of the expenses, — an itemized statement of the sums paid by them, as well as of any admitted to have been paid by defendants, being given in the petition, — and judgment was sought against the defendants for contribution to make up their equal share in the expenses incurred in carrying out their contract. Persons who were not signers of the agreement were made defendants, and the petition also sought to make them liable for their part of the expenses upon facts alleged outside of the written contract. For this purpose it was alleged: That on May 10, 1887, citizens of Flatonia and vicinity, for the purpose of inducing the construction of the road to that place, held a mass meeting, at which they formed themselves into an association to secure that end. That an executive committee was appointed by the meeting, consisting of 20 persons, and was authorized to select a chairman, secretary, and treasurer, and to define their duties, and that it was made the duty of this committee to negotiate and contract with the railroad company for the building of the road to the towns of Flatonia and Winchester, and to use every effort in their power to secure the road; to solicit subscriptions from the people to pay for the road, and to pay a bonus, if necessary; to collect and pay out all funds so appropriated; and to do all other things necessary and possible to secure the building of said railway to Flatonia, including the purchase of right of way. That all of defendants were at the meeting, and agreed to its proceedings, and that all who were put upon the executive committee accepted, and acted as members thereof, except some who were not sued. That by their acts those present at the meeting, and the members of the committee, induced plaintiffs to believe, and promised them, they would bear their just proportion of the expenses, etc., incurred by plaintiffs in carrying out their common design. That the executive committee met and organized, and on May 14, 1887, appointed a committee of members thereof to negotiate a trade with the railway company. This committee consisted of three of plaintiffs (M. Cockerill, J. Lane, and J. M. Harrison) and two of the other signers of the contract (defendant R. O. Faires and L. G. Robinson, the latter of whom is alleged to be dead, and is not, therefore, sued). On May 18, 1887, this negotiating committee made to the executive committee its report, which was adopted and ratified, and a contract with the railroad company, in accordance therewith, was ordered to be executed, and that the contract so ordered was the same as that sued on. It was further shown that at a meeting of the executive committee, June 22, 1887, a resolution was passed authorizing M. Cockerill, J. M. Harrison, and J. E. Faires, or any of them, to sign notes for right of way, and making it the duty of the railroad executive committee to levy and collect sufficient amounts of the subscription to pay off and satisfy said notes as they may fall due, and to be responsible for the payment thereof; that Harrison and Cockerill signed many notes, and paid out large sums of money, for said railway, for which they have never been reimbursed. It was further alleged that plaintiffs had carried out, for the benefit of all of these parties, the contract thus entered into; that a sufficient amount had not been raised by subscriptions to perform the contract with the company; and that plaintiffs, under the said contract, had advanced the moneys, for which they sought contribution from defendants, fully stating same. The defendants filed answers, appellant, by his pleading, demurring generally to the petition, and excepting to it specially on the ground that it failed to show "what amount and number of subscription, and names thereof, which constituted the fund, primarily, out of which plaintiffs were to be reimbursed, or what disposition had been made thereof, what amounts collected," etc., and upon the further ground that the cause of action was barred by limitation. The answer of defendant also raised the question discussed in the opinion. On the trial it was admitted that plaintiffs had incurred the expenses, as alleged by them, in complying with the written contract with the railway company. Some of the payments were made more than two years, but none of them more than four years, before this suit was brought. The plaintiffs and other signers of the contract were, by the railroad company's receivers, formally released from further liability upon it, because of its having been performed on the 13th day of August, 1891, as alleged in the petition.

A great deal of evidence was introduced to show the liability of those defendants who had not signed the contract; but as the court held that they were not liable, and as no question is made as to the...