McDaniel v. State Fair

• Decision Date: 22 May 1926
• Docket Number: (No. 9645.)
• Citation: 286 S.W. 513
• Parties: McDANIEL v. STATE FAIR OF TEXAS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

286 S.W. 513

McDANIEL v. STATE FAIR OF TEXAS.^*

(No. 9645.)

Court of Civil Appeals of Texas. Dallas.

May 22, 1926.

Rehearing Denied July 3, 1926.

Appeal from District Court, Dallas County; T. A. Work, Judge.

Action by W. A. McDaniel against the State Fair of Texas. Judgment for defendant, and plaintiff appeals. Affirmed.

Etheridge, McCormick & Bromberg, of Dallas, for appellant.

Thompson, Knight, Baker & Harris and Alex F. Weisberg, all of Dallas, for appellee.

VAUGHAN, J.

In the trial court appellant by his cause of action sought to hold appellee liable for certain merchandise sold and services rendered to one Jack Webster Harkrider, the basis of the action being the following written contract:

"This contract, made and entered into this 5th day of August, A. D. 1921, by and between the state fair of Texas, hereinafter known as party of the first part, and Jack Webster Harkrider, of Fort Worth, Tex., hereinafter known as party of the second part, witnesseth:

"That for and in consideration of the conditions hereinafter stated, party of the second part hereby agrees to produce and stage in the stadium at Fair Park on the night of October 8, 1921, a historical pageant, typifying the Centennial of the first settlement of Texas and the subsequent periods of the progress and development of the state.

"2. Said pageant is to be produced and staged at the entire expense of party of the second part, and is to be thoroughly high class and elaborate in every respect; the entire theme and all plans to be subject to the approval of the party of the first part.

"3. The party of the first part is to furnish the use of the stadium, all tickets, ticket sellers, ushers, and police protection, and devote a reasonable amount of the `fair' space in newspapers to the publicity and advertising of said pageant. All other special advertising in the form of bulletins, pamphlets, etc., is to be furnished and distributed by party of the second part solely at his expense. The party of the second part is to furnish ticket takers.

"4. It is further agreed that all ground privileges or concessions such as the sale of programs cold drinks, cushions, etc., shall be held by the party of the first part.

"5. It is also agreed that party of the second part shall have ____ complimentary reserve tickets, which may be distributed by him as he may see fit.

"6. It is agreed that 120 reserve box seats shall be at the disposal of the party of the first part, and with these tickets the officers and directors of the state fair of Texas, the mayor and city commissioners, and the park board of the city of Dallas, Tex., are to be extended courtesies, and no other complimentary tickets are to be allowed to party of the first part.

"7. It is also agreed that passes issued to the press by party of the second part will admit the holder to the gate, and that the party of the second part is to look after and issue tickets to the press.

"8. It is further agreed that the party of the first part shall look after collection and handling of all moneys from the sale of tickets, subject, however, to the inspection of all details by party of the second part.

"9. It is further agreed that seventy-five (75%) per cent. of the gross receipts from admissions shall be given to party of the second part, and that twenty-five (25%) per cent. of the gross receipts shall be given to party of the first part.

"10. It is further agreed that the price of admission to the pageant shall be mutually agreed upon between parties of the first and second part.

"11. Settlement under this contract shall be made on the morning of October 9, A. D. 1921, and as soon as it is possible to check and audit all receipts.

"12. It is further specifically understood and agreed that this contract is contingent upon fires, accidents, or any other causes beyond the control of either party, whereby the fulfillment of this contract may be made impossible, and in such event there shall be no liability or claim for damages whatsoever by either party.

"13. It is also agreed and specifically made a part of the conditions above named that the said party of the first part shall not be held responsible for any salaries or expenses of any employee or employees of the said party of the second part in the fulfillment of this contract, nor for accident or damage to or by any article or person belonging to or employed by party of the second part, while on the grounds of the party of the first part in preparation therefor or removal therefrom.

"14. In granting this concession to party of the second part by party of the first part, it is understood and specifically agreed that the pageant to be staged or produced by party of the second part shall be of the very highest class and type in every particular, thoroughly typifying all memorable and historical data, from the first settlement of Texas down to the present date.

"In testimony whereof, witness our hands and seals in duplicate, this the 5th day of August, A. D. 1921. [Signed] State Fair of Texas, by W. H. Stratton, Sec'y, Party of the First Part. [Signed] Jack Webster Harkrider, Party of the Second Part."

Appellant alleged the liability of appellee to be that of a "joint adventurer" with said Harkrider, the liability sought to be enforced being claimed to have issued out of the making and performance of the terms of said contract by the parties thereto.

Appellant alleged that by the execution of said contract in writing appellee and said Harkrider associated themselves together as joint adventurers in the production of a theatrical spectacle known as the Texas Centennial Pageant; that appellee contributed to the enterprise the use of its exhibition grounds, its stadium, tickets of admission, ticket sellers, ushers, police protection, and certain advertising and other services, while Harkrider contributed his services and skill as managing director and producer; and that, on October 8, 1921, said pageant was produced by appellee and Harkrider; that thereafter the proceeds or revenue realized from the sale of tickets was divided between said parties in accordance with said contract; that by reason of its participation in said joint adventure, appellee was indebted to appellant in the sum of $19,702.95 with legal interest from January 1, 1922, on account of (a) the contract in writing wherein appellee and Harkrider, acting through said Harkrider, jointly and severally, promised to pay appellant the sum of $3,000 for furnishing a 60-piece orchestra for said pageant, which contract had been by him performed; (b) an implied contract whereby appellee and Harkrider jointly and severally bound themselves to pay appellant the sum of $240, said sum being the reasonable value of extras furnished and provided by appellant at the special instance and request of appellee and Harkrider, acting through the latter; (c) 36 other claims which had theretofore been assigned to appellant for a valuable consideration by the owners thereof, aggregating the sum of $16,462,95, for merchandise sold and services furnished and provided for use in said pageant by divers persons, firms, and corporations, and for which appellee and Hardrider, acting through said Harkrider, jointly and severally bound themselves to pay. Appellant alleged that Harkrider was a nonresident, wholly insolvent, and prayed for judgment against appellee for the aggregate sum of $19,702.95.

As to appellee's answer, it is only necessary to state that same included a general denial, special answer denying under oath that it was ever associated with said Harkrider as a partner or joint adventurer in any of the matters and things alleged by appellant, and denying that any of the contracts alleged by appellant were entered into by it or by any one on its behalf, by or with its knowledge, consent, or authority; that appellant and each of his assignors know and were informed that said bills were incurred by Harkrider solely on his own responsibility; and that same would not constitute bills or claims against appellee.

On the 27th day of March, 1925, the jury returned a verdict in favor of appellee under peremptory instructions of the court, on which verdict the judgment appealed from was rendered denying appellant the right of recovery. It is not claimed that appellant or any of his assignors looked to the credit of appellee in furnishing merchandise or services to Harkrider, or that appellee in any way held out or authorized Harkrider as its agent to purchase the goods and secure the services for value of which appellant sues, or that Harkrider in any manner, or on a single occasion, pretended to be contracting for appellee. The only evidence introduced with reference to the contract or sought to be elicited by either party to the suit is to the effect that the contract was carried out and performed exactly as written, and there is no dispute in the evidence about that. We find that the terms and provisions of said contract obligatory on the parties thereto were by them respectively kept and performed; that Harkrider entered into a written contract with appellant under which appellant agreed to furnish, and did furnish, a 60-piece orchestra for five rehearsals and one night performance on October 8, 1921, for an agreed price of $3,000; that the orchestra played at the pageant; and that, in addition thereto, appellant and his musicians, by arrangement with Harkrider, worked overtime, and that he put on three extra people; that the reasonable value of such extra service is the sum of $240; and that appellant had never been paid any part of either of said sums; that the 36 assigned claims declared on by appellant were proved by the introduction in evidence of the original assignments; that these claims, aggregating $16,462.95, were assigned to the appellant by various persons, firms, and corporations, and were for goods, wares, and merchandise sold to and services rendered by such persons, firms, and...