The trial court, upon request, filed findings of fact supplementing the findings of the jury. It was found:
"That, prior to the conclusion of the contract between plaintiff and defendant, there was no agreement or promise that plaintiff would refrain from bidding for the government contract in the contemplation of the parties for the furnishing of wood; the consideration of the agreement is not tainted by fraud or illegality."
If the evidence supports this finding, the judgment should not be reversed upon the ground that the contract sued upon was based upon an agreement to stifle competition in bidding upon a government contract. But, if the evidence conclusively shows that the contract was based upon a prior agreement to stifle such competition, then, upon the authorities cited in the majority opinion, it should be reversed and rendered.
In my opinion the evidence conclusively shows that such was the fact, but I arrive at this conclusion in a somewhat different manner from that expressed in the majority opinion.
In the controverting affidavit filed in Grimes county, contesting appellant's plea of privilege, it was alleged:
"Plaintiff alleges further: That he is engaged in the business ofbuying, selling, and contracting for wood on a large scale. That one ofthe most important contracts which contractors are able to secure in thisline is the government contracts and awards for wood for use ofgovernment employees. That at the time hereinbefore alleged, on or aboutand prior to April 21, 1920, plaintiff and defendant were rival biddersfor the government contract and award. That the defendant in privateinterviews, and by letters to plaintiff, agreed that, if plaintiff wouldnot become a rival bidder for the government contract for the fiscal yearending June 30, 1921, and would assist defendant in securing thiscontract, defendant, in event of securing the award, would share samewith the plaintiff to the extent that plaintiff would be permitted tofurnish 12,000 cords of wood at $6 per cord under said contract with thegovernment. Plaintiff says: That the defendant represented and agreedthat it would bear all expenses of securing the contract, make allbonds, and take all of the risks, and, in consideration for this, theplaintiff would furnish 12,000 cords at said price of $6, a little lessthan the price the government was to pay defendant. That the plaintiff,relying on the offer and representations of the defendant, did not becomea rival bidder for said government contract. That, relying upon thepromises of the defendant, plaintiff returned to Grimes county, Tex., andworked diligently in behalf of the defendant. That said government awards are made to the lowest responsible bidder. That plaintiff used all honorable and legitimate means and methods to ascertain the probable bids of prospective bidders. That, knowing nearly all prospective bidders and the location of their wood and supplies, plaintiff would study the situation, the cost of the wood, the expense of cutting and loading same, the freight charges, and other expenses incident to wood contracts. That in this manner plaintiff was able to determine the probable amount of rival's bid, and would immediately notify the defendant. That in addition to this plaintiff interviewed the government officials, whose duty it was to supervise these bids, in order to gain information which would be useful. That the defendant took advantage of plaintiff's information and acted on plaintiff's advice in the matter. That, by using the information gained through the labor and diligence of the plaintiff, the defendant was able to, and did, revise his figures and bid in such manner that defendant secured the government contract and award for about 31,000 cords of wood for fiscal year ending June 30, 1921. That plaintiff did the greater part of this work in Grimes county, Tex., and with the distinct understanding and upon the strength of defendant's agreement to share said contract and award to the extent that plaintiff should furnish said 12,000 cords at $6 per cord. That, after thus assisting the defendant to secure this contract and award with the government, the defendant fraudulently permitted plaintiff to make all necessary arrangements to comply with said contract in Grimes county, Tex., and, after making said arrangements, the defendant refused to share said award and contract as agreed upon. That the acts of the defendant constituted a fraud practiced on plaintiff in Grimes county, Tex." (Italics mine.)
This controverting affidavit was functus officio when the case was tried upon its merits in El Paso county. For this reason the allegations therein are not to be taken as conclusively established against appellee, as is the case of distinct allegations against interest contained in pleadings upon which a case is tried. Railway v. De Walt, 70 S.W. 531,96 Tex. 121, 97 Am. St. Rep. 877.
Upon the trial of the case upon its merits, the controverting affidavit, so far as respects the conclusive effect against appellee of the allegations therein, was in the attitude of a pleading abandoned or superseded by amendment. The admissions therein were not *Page 641 conclusive against him, but were subject to explanation and contradiction. But appellee did not attempt to explain or contradict the same.
While testifying and upon cross-examination the italicized portion of the controverting affidavit was read to him. He then and there affirmed the truth of the statements therein contained. He did not in any wise attempt to explain or contradict the same.
In this situation I think the truth thereof should be conclusively assumed against him, especially so since the only evidence which can be construed as contradicting his testimony with respect thereto is the inference which may be deduced from Heid's testimony that at the conference in El Paso, when the contract sued upon was made, "all that was said was a matter of price and the amount of wood he could offer."
It seems to me that a plaintiff, who upon the witness stand unequivocally affirms a state of facts within his own knowledge, and which shows that the contract upon which he sues is contrary to public policy, is concluded thereby.
If these facts had been distinctly and affirmatively alleged in the petition upon which the case was tried, he would have been concluded thereby, for the purposes of the trial (Railway v. De Walt, supra), and there is no reason why he should not be likewise concluded by his unequivocal affirmation of their truth while testifying as a witness in his own behalf.
I therefore concur in the reversal and rendition of the judgment.