John B. Peyton brought this suit against C. Bender Son, to recover certain advances and commissions alleged to be due him on two certain written contracts made by the parties, whereby plaintiff was to advance certain money and supplies to the defendants in the operation of their saw mill for the year 1887, at Curry, in Polk County, and for the year 1888 their saw mill at Holshousen, in said county, and to sell the product of said mills, for which he was to receive a commission of 10 per cent. Plaintiff set out said contracts, and an account of the alleged transactions between plaintiff and defendants, showing an alleged balance due him for the years 1887 and 1888, for which he sued. He also pleaded in another count in his petition an alleged accounting had between himself and defendants on July 16, 1889, showing *Page 61 a balance in his favor. Defendants pleaded a general denial, and answered specially, admitting the execution of said contracts, which they averred they had performed on their part, but that plaintiff had neglected and failed to sell the lumber cut by defendants, so that it accumulated at the mill and prevented said mill being run at its full capacity, to their damage $6750; also, that on account of plaintiff's failure to sell as he contracted to do, said lumber remained in stock, and became mildewed and deteriorated in value, and defendants were obliged to turn out and seek a market for themselves, by reason of which they claimed further damage of $5000. They set up also an account of transactions between plaintiff and themselves, showing balance due them by the plaintiff. They charged that sales to the amount of $15,557.02 were made by them, with the consent of the plaintiff, who was unable to sell all the lumber cut by the defendants; and that the commissions thereon amounted to $1555.70, to their further damage.
Plaintiff replied by general denial, and alleged also that if he failed to sell all the lumber cut by the defendants it was because of their failing, neglecting, and refusing to ship lumber and fill the orders given to them by plaintiff, etc. The case proceeded to trial before a jury, and judgment was rendered in favor of the plaintiff for $1561.46.
Conclusions of Fact. — 1. The plaintiff, John D. Peyton, was a lumber broker, and resided at Trinity, in Trinity County. The defendants, C. Bender, Sr., and C. Bender, Jr., composed the firm of C. Bender Son, and as such were engaged in a saw mill and lumber business in the county of Polk, on the Houston East West Texas Railway.
2. On the 25th of February, 1887, the plaintiff and defendants entered into a contract, which was to continue in force for twelve months from March 1, 1887, by which plaintiff was to advance to the defendants money and supplies to the extent of $4000, for the operation of their saw mill at Curry, and to sell all the product of said mill, for which he was to receive a commission of 10 per cent.
3. On the 14th day of January, 1888, the said parties entered into another contract for the year 1888, as follows:
"The State of Texas, County of Polk. — Know all men by these presents, that we, John B. Peyton, of the county of Trinity and the said State of Texas, of the first part, and Bender Son, of the said county of Polk, of the second part, have made and entered into the following contract and agreement, to-wit: Said contract is to take effect and be in force from and after January 1, 1888. Said contract is to continue for a period of twelve months; that is, until January 1, 1889. Said Peyton on his part agrees and obligates himself to advance and furnish to the said Bender Son as much as $4000, which advances are to be made as *Page 62 follows, to-wit, $2000 in merchandise and stock feed, from time to time as needed, and $2000 in money to be advanced as follows, to-wit, $750 by January 10, 1888; $250 on February 10, 1888; $250 on March 10, 1888; $250 on April 10, 1888; $250 on May 10, 1888; and $250 on June 10, 1888. During the continuance of this contract said Peyton is to sell all the lumber cut by Bender Son on their mill in the said county of Polk, situated at Holshousen, on the Houston East West Texas Railway.
"Said Peyton also is to exert himself to make sales of said lumber so cut, obtain the best possible price, etc. On the 10th of each month said Peyton is to turn over to said Bender Son all collections made by him up to the first of said month. He, the said Peyton, is also to use diligence in making collections for lumber sold. All feed, merchandise, etc., bought by said Peyton is to be consigned to and owned and controlled by said Peyton, but the said Bender Son are to have the profits on same. A clerk is to be employed to take charge of the store and lumber shipping, who is to represent the interest of both parties to this contract. Said clerk is to be paid by Bender Son. Should said clerk so employed fail to represent the interest of both parties to this contract, then either party becoming dissatisfied with him may have him discharged, in which event another clerk shall be employed to take charge of said business. Said Peyton is to receive in consideration of the money, merchandise, feed, etc., advanced by him, and for his services in making sales of lumber, making collections, etc., 10 per cent on all sales of lumber, which is to be charged up monthly. On any day of settlement the advances in money, merchandise, feed, etc., are not to exceed more than bills receivable and the lumber in stock, estimated at $5 per thousand feet. At the expiration of this contract, the said Bender Son are to pay back the said $4000 advanced by said Peyton as above stipulated.
"Said Bender Son, a firm engaged in the saw mill and lumber business in said county of Polk, and composed of Charles Bender, Sr., and Charles Bender, Jr., hereby agree and bind themselves to put their mill at Holshousen, on the Houston East West Texas Railway, in the said county of Polk, in good condition, and they further bind themselves to log and run it to its full capacity, cutting and stacking the same, and shipping all the lumber cut to the order of said Peyton. They further bind themselves to construct and put in operation at an early date a good planer in connection with said mill.
"It is further understood and agreed, that all lumber cut from January 1, 1888, until January 1, 1889, is to be bound to said Peyton for advances, and handled by him, the said Peyton, under the terms of this contract. It is also understood and agreed, that all lumber on the yard of said mill on the 1st day of January, 1888, is bound to said Peyton for advances furnished and to be furnished as above stipulated, and is to be sold by him, shipped to his order, etc. *Page 63
"In testimony of the above, we hereby subscribe our names, on this the 14th day of January, 1888.
[Signed] "JOHN B. PEYTON,
"Party of the First Part.
"C. BENDER SON,
"Party of the Second Part.
"Witness: B.H. HOLMES."
4. On March 4, 1888, appellee bought one-third interest in the McDuffie mill in Trinity County, and entered into a contract of partnership with Eliza A. McDuffie, under the firm name of McDuffie Peyton, "to conduct at McDuffie Switch, in Trinity County, Texas, a general saw mill, lumber making, store, commissary, and business usual in the lumber business, excepting speculating in the purchase and sale of lumber not manufactured by them, which is not permissible."
Said Peyton obligated himself to give to said partnership business his attention and general control and supervision, to sell all lumber, to collect all bills, to see that the indebtedness of the firm was properly paid, to purchase all goods and supplies, to pay off all laborers, and to do and perform all acts usually performed by the principal head of a copartnership. An office, containing all the books, papers, correspondence, etc., pertaining to the business, was required to be kept at the mill at McDuffie Switch, but it was contemplated in said contract that the said Peyton would continue his residence at Trinity, from which place the correspondence might be conducted. For his services above stated as managing partner of McDuffie Peyton, the said Peyton was to receive the sum of $100 per month.
5. Business was commenced in accordance with said contracts between plaintiff and defendants, the former making the advances of money and supplies as he undertook to do, and selling the lumber of defendants, which they shipped out on his orders; and it appears to have been continued substantially in compliance with said contracts until after the organization of the firm of McDuffie Peyton. But after said time, and during the latter part of the year 1888, appellee's sales for Bender Co.'s mill amounted to only $3838.88, while defendants themselves made sales to the amount of $15,557.02. There was a conflict of testimony as to the reason why appellee did not sell the lumber as required by the contract, but upon the issue as to whether or not the plaintiff failed to exert himself and to use diligence to sell defendants' lumber, the jury found for the plaintiff, and the verdict is sustained by the evidence, unless we should hold that the contract of partnership between the plaintiff and Mrs. McDuffie was of itself a breach of the contract between him and the defendants. *Page 64 Conclusions of Law. — 1. Appellants' tenth assignment of error is the first presented in their brief, and is as follows:
"The evidence in this case shows that defendants did not violate either the contract of 1887 or the contract of 1888, and that plaintiff did violate the said contract of January 14, 1888, and by a subsequent contract made by him with Eliza A. McDuffie, did put himself in a position directly antagonistic to defendants' interest, and did thereby forfeit and violate the said contract of 1888."
It is objected by the appellee, that this assignment does not specifically point out any error; but we think that it presents the question whether or not the subsequent contract of partnership entered into between the plaintiff and Mrs. McDuffie was ipso facto a violation of his contract with the defendants. The jury found, by rendering a verdict in favor of the plaintiff, that he had exerted himself to make sales of all of the lumber cut by the defendants, as required by the contract, and there is evidence to support the verdict. Neither the contract with defendants nor the contract of partnership with Mrs. McDuffie called for the entire service of the plaintiff, and there is nothing in the two contracts that renders them so antagonistic to each other that the latter would of itself be a violation of the terms of the former. The contract of partnership was undoubtedly very pertinent evidence tending to show, in connection with other testimony, a violation by the plaintiff of his contract with the appellants, but it all went properly to the jury for its determination of the issue.
As maintained by the appellant, the second proposition under the tenth assignment, to the effect that appellee, having the power to discharge the shipping clerk, could not complain of the failure of appellants to ship lumber to his order, is not supported by the assignment.
2. Upon the trial the court allowed the plaintiff to put in evidence, over the objection of defendants, the testimony of witnesses to show what amount of lumber, the different classes of lumber, and the amount of dry lumber that should be carried in stock by a saw mill to enable it to fill the usual run of orders; the objection was, that the issue was not raised by the pleadings nor warranted by the terms of the written contract in evidence. The stipulations in the contract with reference to the sales of lumber are: "During the continuance of this contract said Peyton is to sell all the lumber cut by said Bender Son on their mill in the said county of Polk, situated at Holshousen, on the Houston East West Texas Railway. Said Peyton is to exert himself to make sales of said lumber so cut, obtain the best possible price," etc. "It is further understood and agreed, that all lumber cut from January 1, 1888, until January 1, 1889, is to be bound to said Peyton for advances, and handled by him, the said Peyton, under the terms of this contract." Evidence of usage is not admissible to vary the terms of a contract, but it may be received in explanation thereof. Peyton was not by the very terms of the *Page 65 contract to sell "all" of the lumber cut by the defendants on their saw mill, but he was to exert himself to do so. His explanation of his failure to do so was, that the defendants failed to ship the lumber on his orders; that they shipped out on their sales the best and most saleable grades, and a stock was left from which his orders could not be filled. Appellee testified, that if appellants had cut and stacked the lumber as they agreed to do, and put it into a marketable condition, and not have broken the stock as they did by selling the better and most saleable kinds, he could and would have sold every foot of lumber cut out by them. It is very true that parties to a contract are bound as they bind themselves, but they contract with reference to the usages of the particular trade or business about which their agreement is made. The evidence was pertinent to the issue as to whether or not the plaintiff was in default in failing to sell "all" defendants' lumber, and there was no error in admitting the same, and no pleading was necessary.
3. There was no error in admitting the written memoranda made by the parties in their effort to settle in July, 1889. Plaintiff testified, that he and the defendant C. Bender, Sr., on the 10th day of July, 1889, had an accounting together, or an attempt to adjust their differences in accounts; that they checked up and agreed to all the differences then, except commissions on sales of defendants from August 1, 1888, to January 1, 1889, and commissions on lumber on hand January 1, 1889; and that the memoranda was made out at the time as a basis to act on, and had been agreed to excepting commissions as before stated. Defendant objected, that it did not show an account or an account stated. In explanation of the ruling, the trial judge, in signing the bill of exceptions, stated, that the plaintiff testified that the defendant Bender, Sr., had agreed to the items, and had the instrument made out by his clerk, and ordered it copied in his letter book. That it was admitted not as an account stated, but as bearing on the question of general indebtedness, and the jury was so informed.
4. The next assignment of error is objected to by the appellee as too general, and the proposition under it not germane to the assignment. We think, however, that the questions sought to be raised by this assignment are disposed of in our consideration of the admission of the testimony of the witnesses with reference to the character of stock of lumber necessary to be carried. The charge complained of does not submit the construction of the contract to the jury, especially when taken in connection with other portions of the charge. There was no error for which the judgment should be reversed in the stating of the amount claimed in the petition at a greater sum than was admitted to be due, as the verdict of the jury was evidently not affected by it, nor is the question properly raised by an assignment of error. *Page 66
5. Counsel for plaintiff, while addressing the jury, stated as evidence matter that had been offered and excluded. No objection was made by counsel for defendants, nor was there any notice taken of it at the time. The judge, in giving a bill of exceptions, stated that he didn't remember the language used by counsel as stated, but thought it was correct. The statement was, that Peyton told Mrs. McDuffie and her counsel, Mr. Hill, at the time the contract of partnership was made, "that he could only give half his time to the McDuffie mill." No cause for the reversal is shown.
There is nothing further that requires the attention of the court. The case is one of fact, in which the issues have been determined by the jury in favor of the plaintiff; and having been submitted on evidence properly admitted, and no error being shown, the judgment rendered thereon will be affirmed.
Affirmed.