Missouri Pac. Ry. Co. v. Simons

• Decision Date: 14 March 1894
• Citation: 25 S.W. 996
• Parties: MISSOURI PAC. RY. CO. v. SIMONS et al.
• Court: Texas Court of Appeals

25 S.W. 996

MISSOURI PAC. RY. CO. v. SIMONS et al.

Court of Civil Appeals of Texas.

March 14, 1894.

Appeal from district court, Williamson county; William M. Key, Judge.

Action by Simons & McCarty against the Missouri Pacific Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

S. R. Fisher, for appellant. A. S. Fisher, John H. Parker, and John C. Souries, for appellees.

STOREY, Special Judge.

Appellees brought this suit in the district court of Williamson county against W. E. Springall and the Missouri Pacific Railway Company to recover the value of certain goods, wares, and merchandise sold and delivered by appellees to Springall, the contractor for the construction of the Tayler, Bastrop & Houston Railway, and to recover the amount of a certain time check executed by said Springall to one L. Thomas, November 20, 1886, and by him transferred and delivered to plaintiffs. The case was tried before the court without the intervention of a jury, and judgment was rendered for appellees, who were the plaintiffs in the court below, for $1,706, interest and costs. No judgment was rendered against W. E. Springall, and he recovered his costs of plaintiffs. And from this judgment the Missouri Pacific Railway Company appealed. This judgment was based upon the findings of the court as to the facts and law of the case, which are as follows, viz.:

"Fact: (1) The account sued on is correct, and the several items therein stated were, at the times stated, sold to the defendant Springall, and were worth the several sums charged therein for them. That same is due and unpaid, and plaintiffs have demanded payment of same from both defendants before bringing this suit. (2) The Taylor, Bastrop & Houston Railroad is a domestic corporation incorporated under the laws of Texas, and was such at the date of the institution of this suit, and in 1886, when the same was being constructed between Taylor and Bastrop; and it is the same road referred to in plaintiffs' petition as the `Taylor, Elgin & Bastrop Road.' (3) Subsequent to the accrual of the account and indebtedness sued on, a contract, founded upon a valuable consideration, was entered into between defendant Springall and Major Wathen, acting for the defendant Missouri Pacific Railway Company, in which said Wathen agreed that said railway company would pay to plaintiffs the amount owing by defendant Springall on said account. (4) At the time of making the agreement last above referred to, said Wathen was the chief engineer and superintendent of construction of the defendant Missouri Pacific Railway Company, and, for said company, had charge of the construction of the Taylor, Bastrop & Houston Railroad, then being constructed from Taylor to Bastrop, and had authority to enter into said contract for said defendant Missouri Pacific Railway Company. (5) The consideration for the contract stated in the third finding was as follows: The Missouri Pacific Railway Company owed Springall; and Wathen, for said company, agreed to pay plaintiffs' claim, and other claims against Springall, out of its indebtedness to him, and in a settlement with him retained more than enough money to pay plaintiffs' debt.

"Law: (1) The defendant Missouri Pacific Railway Company, having agreed with defendant Springall to pay the account sued on out of money owing by said company to Springall, said agreement, though verbal, is not within the statute of frauds; and plaintiff, though not a party to the agreement, can sue thereon. (2) Plaintiff is entitled to the judgment for $1,221.70, with interest at 8 per cent. per annum from January 1, 1887, to July 13, 1891, and at 6 per cent. per annum since that date, against the defendant Missouri Pacific Railway Company, and no judgment should be rendered against Springall."

The only questions submitted for our consideration by appellant are: "(1) Did the court err in the admission of testimony touching the agency of Wathen for the Missouri Pacific Railway Company, and his authority to bind it by contract to pay the debt of Springall to plaintiffs? and (2) does the testimony relating to said agency, if properly received, warrant and support the findings that Wathen was the agent of the Missouri Pacific Railway Company, clothed with authority to bind it, by contract, to pay Springall's debt to plaintiffs?" And in support of appellant's position the following assignments of error are presented in its brief. All other questions are expressly waived. We quote these assignments as they occur in appellant's brief, as follows, viz.:

"The sixth assignment: The court erred in its third, fourth, and fifth findings of facts, in finding that a contract had been entered into between the Missouri Pacific Railway Company, acting through Wathen, and Springall, because the evidence before the court did not establish the agency of Wathen for the Missouri Pacific Railway Company, its nature or scope, and the findings are without evidence to support them."

There is no conflict in the evidence, whatever. The question is as to the admissibility and sufficiency of the evidence. Gen. Walker and Maj. McLaurin were the original projectors of the Taylor, Bastrop & Houston Railway, and the defendant W. E. Springall was the contractor to build the road from Taylor to Bastrop. Under this contract the railway company was to secure the right of way, and furnish the iron for the construction of the road, while the contractor, Springall, was to do everything else necessary to complete the road ready for the cars. Under this contract the road was finished up from Taylor to Elgin, or nearly so, and then, about the 16th day of July, A. D. 1886, Walker & McLaurin sold out all of said railroad franchises to the Missouri Pacific Railway Company, upon condition, in part, that the Missouri Pacific Railway Company would pay the contractor, Springall, for all work done and material furnished by him, etc., then estimated at $10,566.33. There was then due by Springall to subcontractors about $2,000. Springall then made a new contract with the Missouri Pacific Railway Company, in substance continuing his former contract with Walker & Co.; that is, to construct the road to Bastrop, etc. This contract, in substance, provided, among other things, that monthly estimates were to be made of the work, price of all material furnished, and upon completion of the work the contractor was to be paid the balance due him on...