R. C. Storrie, in the firm name of Storrie, Bavouset Co., instituted this suit on the 2d day of August, 1906, against the Ft. Worth Stockyards Company and the Belt Line Railway Company, to recover the sum of $19,071.65 alleged to be the balance due for a large amount of grading, excavating, filling, etc., done by said firm for the defendants under a written contract. It was alleged that the firm of Storrie, Bavouset Co. was composed of R. C. Storrie and J. Lang; that J. Bavouset whose name appeared in the firm was not a member of the partnership, but that his name was used with the permission of the plaintiff for the benefit of Lang. A copy of the contract was made an exhibit to the petition and provided for the payment on the part of the defendants:
For clearing and grubbing per acre ........... $20.00 For earthwork per cubic yard ................. .13 1/2 For loose rock per cubic yard ................ .36 For solid rock per cubic yard ................ .72 For overhaul after 300 feet from haul ........................................ .01 1/4 per cubic yard for each 100 feet of haul.
It was alleged that the plaintiffs had performed work in accordance with the contract, as estimated by the defendants' engineer in charge, of the value of $53,071.65; that said amount less the sum sued for had been paid to said firm under the terms of the contract; that soon after the completion of the work in September or October, 1902, the defendants had attempted a settlement with R. C. Storrie which had been declined; that later, in September, 1903, J. Lang and J. Bavouset without the consent of the plaintiff Storrie conspired with the defendants and entered into an agreement whereby the said J. Lang was to accept from said defendants in full satisfaction of said $19,071.65, the sum of $9,288.68; that this agreement between Lang, Bavouset and the defendants was consummated, said Lang in the name of the said firm of Storrie, Bavouset Co. signing a receipt purporting to be in full settlement of all demands against said defendants in favor of the firm. It was further alleged that the defendants pretended to have paid to Armour Co., *Page 288 a corporation doing business in Tarrant county, the sum of $8,778.27, which sum said defendants improperly charged to the account of the plaintiff, Storrie, Bavouset Co.; that said charge, as was claimed by the defendants, was the amount due to said Armour Co. for certain dirt placed upon the fill of the defendants and taken from the premises of Armour Co. by R. C. Storrie in a contract by Storrie individually with Armour Co. to do certain excavations.
The defendants, Ft. Worth Stockyards Company and Belt Line Railway Company, answered, pleading that Lang had been made a party without his authority and specially, among other things, that the amount paid Armour Co. for dirt was a just charge against the firm of Storrie, Bavouset Co.; that said Lang and Bavouset so admitted and agreed that the sum of $9,288.68 was all that was due upon the contract and that this sum had been paid to them as a final balance on the 17th day of September, 1903. These defendants also pleaded over against the defendants J. Lang and Bavouset urging the good faith of the payment to them under an agreement that the amount paid constituted the full amount due said firm of Storrie, Bavouset Co.; and they prayed, as against Lang and Bavouset, for judgment for any such amount as might be adjudged against them in this suit.
J. Bavouset appeared, and, among other things, pleaded a general denial to the plaintiff's petition and specially denied that he at any time ever entered into, or became a party to, any conspiracy with Lang or the other defendants to in any wise defraud the plaintiff Storrie and specially denied all allegations of fraud, and averred that the settlement made by himself and Lang was, so far as he knew, "a fair, just and correct settlement"; that said settlement was made by the authority of the majority of the members of said firm "in good faith and with no intent or purpose to in any wise defraud R. C. Storrie and that the settlement was within the scope of the authority of the majority of the members of the former firm or the partnership of Storrie, Bavouset Co."
It appears that upon a hearing of the defendants' motion therefor J. Lang was dismissed from the suit and that upon the submission of the case to the jury the trial resulted in a verdict for the defendants.
The contract between Storrie, Bavouset Co. and the Ft. Worth Stockyards and Belt Line Railway Company provided for monthly payments as the work progressed to be made upon estimates of the supervising engineer, one Robey, and appellant first complains of the exclusion of his testimony as set out in bill of exception No. 1. The material part of this bill as set out in appellant's brief is as follows: "Q. Was there any understanding as to who was to get paid for it?" (Meaning the dirt from the Armour excavation that was put on the stockyards fill.) To which question plaintiff Storrie, answered as follows: "A. There was no understanding as to who was to get paid for this Armour dirt, only that after we done our first work, and the estimates came along — the first work that was done, when our estimates came along — we looked up and estimated the amount of work that had been done, the amount of dirt that had been put in that fill, and the amount of work that had been done on the stockyards, and figuring up the amount of excavation and the amount of dirt that was put in that fill, and comparing it with our estimate, we saw that we were being paid for the dirt that was going into the stockyards fill. We got our information as to this from work that we had done and from the yardage that had been put out. That estimate, as I understand, was made by Mr. Robey. We arrived at that just exactly like a man would arrive at any other piece of work — he knows exactly what he is doing and he knows how much dirt he has moved, and he knows where he has put it — he knows where he has put every yard of it, and so it is accurate, and if we were 5,000 yards or 1,000 yards short, why we would know it at the time the estimate was made, whether we were being paid for it or not.
To this testimony as given by the plaintiff, Storrie, the defendants objected upon the ground that it was nothing but an ex parte and a one-sided argument, and a conclusion of the worst legal form, and this objection was by the court sustained, and the plaintiffs then and there in open court excepted to the action of the court in excluding the testimony, etc.
We think as appellee suggests that the testimony so offered was argumentative. Moreover, the record shows without dispute that the plaintiff, Storrie, after the first estimate made under the contract under consideration was absent in foreign lands; that he personally knew nothing of the particulars until his return after the completion of the work, and a consideration of the bill makes it evident that the fact he sought to thus show was that during the continuance of the work the dirt from Armour Co. had been placed in the fill of the defendants and regularly estimated and paid for without deduction as the work progressed. This fact, however, otherwise appears from the record without dispute. John Currie, who had charge of appellant's "outfit and looked after Mr. Storrie's interests in the work" testified that "the first time I ever heard anything about this claim for this $8,000 was when I first saw the final estimate, and that was after the work had been completed and the dirt had been deposited on to the stockyards company's property." The superintending engineer, Robey, testified: "The reason this Armour dirt was not put in the estimate as the work progressed was *Page 289 because it is a very difficult proposition to tell where 60 or 80 wagons going around all the time have come from." It further appears without dispute that the amount of the Armour dirt was determined by the engineer, Robey, who was also superintending the work done by appellant, Storrie, for Armour Co., by calculating the number of cubic yards taken from the Armour excavations and that the deduction made from the Storrie, Bavouset Co. contract for this dirt was on the final estimate. The quantity of dirt thus estimated is not called in question, and we think it appears that appellant had the full benefit of all inferences to be legitimately deduced from the fact he evidently sought to show in the testimony set out in the bill of exception, and, therefore, that in no event should we sustain appellant's first assignment of error.
Complaint in the third assignment is urged to the action of the court in admitting the receipt executed by Lang and Bavouset for $9,288.68 in full discharge of the Storrie, Bavouset Co. contract. This was objected to on the ground that it did not appear to have been signed by any one who had authority on the part of the plaintiff, and, furthermore, because it appears that at the time of its acceptance by the defendants they had knowledge of the fact that it was not satisfactory to Storrie, Bavouset Co., and that it was not a full payment of the true claim. It seems evident to us, however, that this assignment cannot be sustained for several reasons. In the first place the court, among other things, specifically instructed the jury that this receipt "would not be binding upon said firm of Storrie, Bavouset Co. if in fact, if such be the case, there was still due from said defendant to said firm after and in addition to the payment evidenced by this receipt any sum of money for work done under the contract aforesaid. And if you find there was any such sum due said firm in addition to the $9,288.68 paid said J. Lang, then your verdict will be for such amount, if any, as you may find to be so due and unpaid." The court thus assumed in appellant's favor a want of authority on the part of Lang and Bavouset to bind the firm by the receipt of a less sum than was actually due, and further assumed in appellant's favor the only fact upon which he bases his proposition under this assignment, viz., that the receipt was "not admissible to prove the payment of the whole amount due." The receipt was at all events admissible, if not as evidence under the defendants' cross-plea against Lang and Bavouset, at least as evidencing a partial payment under the Storrie, Bavouset Co. contract. The third assignment is, accordingly, overruled.
In the fourth assignment complaint is made of the court's action in admitting the testimony of W. B. King as set out in bill of exception No. 7. This bill consists of a running series of questions, answers, and objection too voluminous to embody in the opinion. The evidence admitted and objected to, however, is to the effect that W. B. King, who was the general manager of the Ft. Worth Stockyards Company, had contracted with Armour Co., at a certain price per cubic yard, for the dirt coming out of their excavations to be placed upon the fill of the stockyards company; that the amount of dirt so taken from the Armour excavations and placed upon said fill at the contract price amounted to the sum of $8,778.27 which he (King) paid to Armour Co. and for which on final estimate the firm of Storrie, Bavouset Co. had been charged. Appellant's material contention, in substance, is that the firm of Storrie, Bavouset Co. was not chargeable with the dirt taken from the Armour excavation for the reason that under the contract with the stockyards company, Storrie, Bavouset Co. were to "get 13 1/2¢ per cubic yard for dirt excavated on defendants' premises and 13 1/2¢ for dirt brought to line and grade in the fills on defendants' premises (whether said dirt came from the excavation on defendants' premises or from elsewhere) and 1 1/2 cents per cubic yard for overhaul," etc. The question thus presented goes to the very foundation of the suit as instituted. We do not think it can be said, however, that as a matter of law the contract between the stockyards company and the firm of Storrie, Bavouset Co. is to be construed in accordance with appellant's contention. It will be seen from the quotation hereinbefore made from the contract that Storrie, Bavouset Co. were to receive "for earthwork per cubic yard 13 1/2¢." The contract does not provide that the earth with which the fill was to be made must be taken from the premises of the stockyards company nor prohibit its placement by others, nor does it provide for any specified number of cubic yards which of right under the contract Storrie, Bavouset Co. could put in on the fill, and it appears from other provisions in the contract that the clearing, grubbing, cutting, and fills were to be made as should be directed by the supervising engineer, the engineer being thus permitted to direct when and where fills were to be made and determine when they were completed. It seems also undisputed in the evidence that in the contract between appellant, Storrie, and Armour Co., he was required under the direction of the same engineer to remove and deposit all excavated dirt from the Armour work at such place as should be directed by the engineer, appellant to receive a specified number of cents per cubic yard for the haul. Under this contract appellant in fact removed a large quantity of dirt from the Armour work and filled certain low places on the Armour Co.'s premises without further charge than allowed for the excavation and hauling. It further appears undisputed that *Page 290 during the progress of the stockyards works and while appellant was engaged in prosecuting the Armour work he was by said supervising engineer directed to remove the dirt which furnishes the basis of this controversy to specified places on the stockyards premises. While there is some contention in the appellant's brief that this loose or waste dirt from the premises of Armour Co. belonged to appellant, the evidence fails to support any such view. Mr. Clark, Armour's representative with whom appellant contracted for the Armour work, testified that: "Under the contract it was Armour Co.'s dirt. There was no agreement that Mr. Storrie was to have the dirt when excavated. Mr. Storrie was to put the dirt where we directed him." This is nowhere disputed in the testimony. Moreover, appellant, himself, testified: "No, the item I am claiming and suing for in this suit is not for hauling the Armour dirt on to the stockyards fill. I do not sue for that. I sue for the dirt after it was put there. I have been paid for the haul. I am suing for the labor that I put on that dirt that was put in the stockyards fill. I am not suing for hauling the dirt. I am suing for doing what Mr. King paid me 13 1/2¢ for doing with the stockyards dirt. I had to do the same thing with the Armour dirt. I am not suing for the value of the dirt to the stockyards company." It seems to us that what has been said at least indicates that there was room for the contention of the stockyards company that it should be allowed in the settlement with Storrie, Bavouset Co. for the value of the dirt for which in the monthly estimates Storrie, Bavouset Co. had been credited. Suppose, in illustration, that before any work had been undertaken by Storrie, Bavouset Co., the stockyards company from any or whatever source it could have purchased and provided for the deposit of any amount of dirt at designated places on the stockyards premises, what right of complaint would Storrie, Bavouset Co. have had? Their contract with the stockyards company did not, as we have before observed, guarantee that they should be furnished with an opportunity to cut, or remove in any way any given number of cubic yards of dirt or other materials. Very probably, Storrie, Bavouset Co. could have lawfully claimed and received the reasonable value of grading the Armour dirt as furnished upon the ground if in fact worked after its deposit, but the contract between Storrie, Bavouset Co. and the stockyards company has no provision covering this phase of the evidence, nor has appellant any pleading that would authorize a recovery for this labor upon a quantum meruit. In view of appellant's specific charges of conspiracy and of fraud and of the evidence as we find it, we, therefore, conclude that the evidence of Mr. King objected to in the fourth assignment was admissible, if for no other purpose, for the purpose of showing the good faith of the stockyards company's contention and of the settlement of the matter as made by Lang and Bavouset.
The testimony of W. A. King complained of in the fifth assignment to the effect that he did not enter into a conspiracy of any kind with J. Lang and J. Bavouset to defraud R. C. Storrie, if objectionable for any reason, seems to have been rendered entirely harmless by the court's charge, which we have hereinbefore quoted in part, and which in effect directed the jury to find for appellant in event they found that anything was due under the contract regardless of the good or bad faith of King, Lang, and Bavouset, and the testimony complained of in the sixth, seventh, and eighth assignments of error likewise seems to be at least harmless.
The testimony of King to the effect that neither R. C. Storrie nor other members of his firm had ever called upon him to arbitrate the question, coupled with the long delay in the institution of the suit, may be said to indicate acquiescence with the Lang and Bavouset settlement, but if not, the testimony was in support of defendants' unassailed special plea settting up a provision for arbitration in the contract,
The testimony of the same witness to the effect that J. Lang never at any time claimed more money due than was paid him under the Storrie, Bavouset Co. contract was admissible on the issue of good faith as well as to show that partners in equal authority with appellant, so far as the record shows, so construed the contract. The evidence of the same witness to the effect that the value of the work done by the plaintiff in leveling and bringing to line and grading the Armour dirt on the stockyards site was "about two or three hundred, perhaps three or four hundred, dollars at the outside to level it off," does not seem to be very material in any view of the cast, but, whether so or not, we do not think we can sustain the special exception made to this testimony. It was: "We object to that because it does not appear from any evidence that anybody had the right to direct this dirt to be put on the grade in that it might have been a dump 40 feet high; as far as the evidence is concerned, it is a there guess." It certainly appeared that the engineer had the right to direct the deposit of the dirt which direction was abserved by appellant and his foreman without protest, and whether placed in one place or another is immaterial to the present controversy.
Complaint is also made that the court erred in failing to charge the jury the legal effect of the contract sued upon, and in refusing to give special charges Nos. 1 and 2 presented by appellant. The special charges we think objectionable and from what we have already said of the contract, we think the court could not properly have charged the jury to the effect that it required a finding *Page 291 for appellant, as appellant seems to insist should have been done.
The thirteenth, fourteenth and fifteenth assignments of error certainly seem to be too general to require consideration, but in view of the zeal with which the cause has been presented, both orally and by brief, it may be appropriate to say that these assignments complain of the action of the court in overruling plaintiff's motion for a new trial on the ground that the verdict and judgment is contrary to the law and the evidence. Notwithstanding the general form of the assignments the record has been carefully examined and we think there is no merit in the contention. Besides other things hereinbefore stated we add in a general way that, aside from the effect to be given to the settlement made by Lang and Bavouset, when J. Lang was dismissed, and to which action on the part of the court appellant has assigned no error, the suit of the partnership as such terminated. See Frank v. Tatum, 87 Tex. 204, 25 S.W. 409. Notwithstanding this, however, in view of appellant's allegations of conspiracy and fraud, the suit was properly continued for the determination of whatever right appellant might establish, for the parties could not collusively deprive appellant of any right to which he was entitled under the contract. His right in no event, however, was to recover the entire amount due upon the contract for the benefit of the partnership, but only to recover such aliquot part of the unpaid sum, if any, as appellant was entitled to as a member of the firm. In so far as Lang and Bavouset were concerned, they by their settlement were undoubtedly precluded, and appellant, therefore, only lost by their fraud, if any, the amount that would have been coming to him under the terms of their partnership agreement, whatever that was. See Busby v. Rooks, 81 S.W. 1056,1 South Fork Canal Co. v. Gordon, 6 Wall. 561,18 L.Ed. 894.
On the whole we think all assignments of error should be overruled and the judgment affirmed.
1 Reported in full in the Southwestern Reporter; reported as a memorandum decision without opinion in 72 Ark. 657.