Stark v. Burkitt

• Decision Date: 15 June 1910
• Citation: 129 S.W. 343
• Parties: STARK v. BURKITT et al.
• Court: Texas Supreme Court

129 S.W. 343

STARK v. BURKITT et al.

Supreme Court of Texas.

June 15, 1910.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by A. M. H. Stark against George W. Burkitt and others. Judgment for defendants was affirmed by the Court of Civil Appeals (120 S. W. 939), and plaintiff brings error. Reversed and remanded.

Geo. E. Holland, for plaintiff in error. Adams & Huggins, for defendants in error.

BROWN, J.

Stark & Elliott entered into a contract, whereby they agreed to deliver to Burkitt & Barnes upon the right of way of a railroad, railroad ties to the number of 100,000 at stated prices, according to the class of the ties, with the privilege to deliver another 100,000 if they so desired after the filling of the first contract. Stark & Elliott entered upon the performance of the contract, and had ties to the number of about 40,000 upon the right of way, when they found that they were not able to proceed with the contract without the advancement of money by Burkitt & Barnes, who had, however, previously advanced something over $4,000 to them. In order to enable them to proceed with the contract, a note was executed by Stark & Elliott for $5,000, payable to Burkitt & Barnes, which the latter agreed to enter to the credit of the makers of the note and to make advancements to the contractors for the payment for labor and other things necessary in the performance of their contract. After a lapse of some time, Stark ceased to co-operate with Elliott in furnishing the ties. Stark alleges that Elliott combined with Burkitt & Barnes to exclude him from participating in the contract and refused to allow him to take part in it; but the defendants claimed that Stark refused himself to take any part in the performance of the contract and abandoned it, whereupon Elliott endeavored to carry it out. Stark brought this suit against the three, Elliott, Burkitt, and Barnes, upon his theory of having been eliminated from the contract by their refusal to permit him to take part in its performance, which was submitted to the jury by the court and found against Stark. It is therefore unnecessary for us to pay any further attention to that phase of the case.

Burkitt & Barnes interposed a plea, in which they set up the following defense: "That although they never at any time obligated themselves to make said firm any advances for labor or for any other thing, and never agreed to pay them any amount before the delivery of the ties, that they did, in fact, advance to said Stark & Elliott moneys during the time said ties were being made, and not only paid out to them large amounts upon the delivery of ties, but from time to time advanced them large sums of money with which to pay for labor and other expenses, and that they gave them proper credit and allowances for all ties received, and that said advances were made to said Stark & Elliott upon a promise and agreement to deliver to said defendants, Burkitt & Barnes, ties to a number and in an amount sufficient to reimburse them for said advances. That, having in the manner above set out advanced to Stark & Elliott large sums of money with which to meet said labor bills and other expenses, the defendants, Burkitt & Barnes, on the 29th day of July, 1905, found that said firm of Stark & Elliott were indebted to them in the sum of $4,402.33, and, it appearing on said day that large amounts would be required at once by the said Stark & Elliott to meet demands being made upon them incident to getting out ties, the said Stark & Elliott executed their promissory note in writing, by which they promised to pay Burkitt & Barnes the amount therein set out, executed by each member of the said firm individually...