"Comes now J. H. Spivey, plaintiff herein, and complaining of Saner-Ragley Lumber Company, a Texas corporation, with its domicile and principal office at Carmona, Polk county, Tex., hereinafter for convenience called the company, and of W. G. Ragley, whose residence is to plaintiff unknown, but who is temporarily to be found in Polk county, Tex., respectfully shows:
"(1) That on and immediately prior to November 28, 1914, the said company, acting through the defendant W. G. Ragley, who was at that time and now is treasurer and general manager of said company and its managing director negotiated with this plaintiff, J. H. Spivey, a resident of Jefferson county, Tex., who was then engaged in the turpentining operations at and in the vicinity of Voth, in Jefferson county, Tex., with a view to his removing his plant and equipment to the property owned and controlled by the defendant company in Polk county, Tex., represented by the defendants to aggregate approximately ten thousand seven hundred (10,700) acres of virgin, long-leaf yellow pine, and continue operating his turpentine business upon said timber last mentioned under arrangement which would produce a substantial revenue to the said defendant company and to the defendant W. G. Ragley, the principal stockholder, managing director, who was, at that time, and still is, the treasurer and general manager of said company, such negotiations culminating in a contract being duly executed in Jefferson county, Tex., on, to wit, November 29, 1914, by and between this plaintiff and the defendant company, acting by and through the defendant W. G. Ragley, aforesaid, same being in words and figures substantially as follows, to wit:
"`Agreement entered between the Saner-Ragley Lumber Company of Carmona, Tex., and J. H. Spivey of Voth, Tex., the Saner-Ragley Lumber Company, party of the first part, enters into an agreement with J. H. Spivey, party of the second part. J. H. Spivey, party of the second part agrees to pay the Saner-Ragley Lumber Company party of the first part, six cents per cup per year for the first year. J. H. Spivey agrees to put in from 50,000 to 75,000 cups the first year or the coming season of 1915. J. H. Spivey agrees to pay on the 20th day of January, 1915, 3 cents per cup in cash, the remaining 3 cents 60 days from date of first payment. The Saner-Ragley Lumber Company does not agree to have the timber cupped over two years or a two years' lease, unless otherwise agreed to. At the end of the season the Saner-Ragley Lumber Company has a right to take over timber that has been turpentined at the end of season, and replace with other timber that is owned by the Saner-Ragley Company. J. H. Spivey agrees to leave 40 per cent. of the tree left alive between the cups as an average. The lumber company agrees to sell all parties that are working for Mr. Spivey all goods that are in the company's store at the same prices as they do their own men. Mr. Spivey agrees to settle for all bills at the first of each month, less 10 per cent. The additional timber to be turpentined each season will be on the same basis as set out above, the amount for each season will be fixed later. This covers the entire tract of timber owned by the Saner-Ragley Lumber Company. J. H. Spivey agrees not to put in a store to handle goods. Saner-Ragley Lumber Company, per W. G. Ragley, party of the First Part. J. H. Spivey, Party of the Second Part. This agreement entered into this the 28th day of November, 1914.'
"It was agreed by the parties to the contract aforesaid, and the said contract contemplated, that this plaintiff should have the right to continue his turpentining operations until all of the timber aforesaid had been so turpentined for at least two years, with the exception in said contract noted.
"(2) Plaintiff would further represent that by said contract he acquired valuable rights, and in good faith proceeded, at great expense to himself, to prepare and carry out said contract according to its terms and agreeable to all the understanding between the parties governing same, but that the defendants, and each of them, wrongfully and without any just cause, on or about, to wit, February 1, 1915, undertook to repudiate said contract on the alleged ground and claim that the said W. G. Ragley had no authority to bind the company thereby, and the defendants, and each of them, have ever since, notwithstanding the insistence on the part of the plaintiff that he should be allowed to carry out the terms of his contract aforesaid, prevented this plaintiff from so doing, and from acquiring any of the benefits secured to him by the terms of said contract, whereby this plaintiff was, without fault on his part, prevented from continuing his turpentine business for the year 1915, and to cause him practically the loss of said year to his business, as well as causing him to incur great and useless expense to his damage on said accounts in the sum of ten thousand dollars ($10,000), as well as to cause him to lose the value and reasonable profits of the rights and privileges which would have accrued to him under the terms of his contract aforesaid but for the breach thereof by the said defendants, to his damage in the further sum of sixty-five thousand dollars ($65,000).
"(3) Plaintiff would further show that according to his best information and belief there was no truth in, and the facts did not support, the defendant's contention aforesaid that the
defendant W. G. Ragley did not have authority to bind the company by his execution of the contract aforesaid, but that same was an afterthought, inspired by the fact that shortly after the said contract was entered into, and before its breach hereinbefore complained of, a certain large naval stores corporation, doing an interstate business, offered the defendants a large advance in price for the privileges conferred upon plaintiff by the contract aforesaid, the value of such turpentine privileges having in the meantime advanced, by reason of the condition of the market and demand for naval stores products, and therefore the defendants undertook to dispose of the rights which belonged to this plaintiff under the contract aforesaid to such corporation for an advance of approximately, to wit, sixty-five thousand dollars ($65,000) over the price for which plaintiff was to have secured such privileges under the terms of his contract, and the defendants wrongfully permitted said corporation last mentioned to go into possession of its timber aforesaid, and is still allowing said corporation to proceed with the work of turpentining said timber, thereby reaping the fruits and benefits thereof, which right belonged to this plaintiff under the terms of his contract aforesaid, and thereby preventing this plaintiff from securing to himself his rights by enforcing specific performance of the contract aforesaid, and leaving to this plaintiff no other relief but this action for his damages so wrongfully sustained.
"(4) This plaintiff says that at all times he was ready, able to, and willing to comply with the terms of his contract, including the payment of the amounts due by the terms thereof, on January 20, 1915, and 60 days thereafter, which payment he offered to make to said W. G. Ragley, defendant, and treasurer and general manager of the defendant company, in Beaumont, Jefferson county, Tex., where it was agreed such payments should be made; that such payment was tendered by this plaintiff promptly, and full performance of said contract thereafter, from time to time, tendered by this plaintiff with insistence, but refused by the defendants at all times.
"(5) Plaintiff would further show that the defendant W. G. Ragley was, at the time of the negotiations aforesaid and of the execution of the contract hereinbefore referred to, the treasurer and general manager of the defendant company, its principal stockholder and member of its board of directors, and, in fact, its managing director, purporting to have the authority to act in all such matters with binding force upon the defendant company, and he was held out by said company as having such authority, and did at that time, as he has, at all times during the life of the defendant company, exercised such power and authority, as this...
