Opinion. — The motion of appellants for a rehearing, in our opinion, must be overruled.
It is earnestly insisted by counsel for appellants that we should have sustained the seventh assignment of error, which is that the court below committed error in charging the jury that the failure of defendants to pay plaintiffs for the ten miles of work completed excused plaintiffs from completing the other twenty miles of grading, and that, though plaintiffs abandoned the further performance of the contract, they were entitled to recover against the defendants for the work done at the contract price.
The contract made by Miller with plaintiffs stipulated: "The parties of the second part agree to pay the party of the first part, on the completion of each continuous ten miles of the grade, as the same is received and cost price certified to by the engineer in charge."
Appellants' position is that the power of attorney to Miller by appellants limited the agent, and that he exceeded his powers in the stipulation that his principals agreed to pay for each ten miles of the road as received and certified by the engineer in charge. To support this contention they present the following clause of the power of attorney: "And in consideration of the premises and the contract for the grading of said road to be entered into by our said attorney, we hereby agree and obligate ourselves respectively to secure our subscriptions heretofore or hereafter made for the grading and extension of the aforesaid road by good and sufficient bankable security, to be approved by and made payable to Moore, Foster Co., bankers, of Llano, Texas, to hold in trust and to enable them to guarantee the payment to such contractors, for the grading of said road, of our respective subscriptions, as follows, viz: That is to say, upon the completion of the grading of each ten miles of said railway, beginning at the town of Fredericksburg, thence to Llano town, to pay upon our said obligations respectively the sum of twenty per cent, and the remainder of such subscription, if any, to be paid upon the completion of said grading of said railroad to said town of Llano, provided said grading of said road be completed to said town of Llano on or before the first day of January, A.D. 1890." *Page 132
Appellants insist that this clause in the power relates to the payment to be made to the contractors on completion of each ten miles of the grading, and limits the power of the agent to make only such contract. We think it relates to payment to be made on the subscriptions they had made and that should be subsequently made, — a collateral undertaking to secure the amount subscribed in order to enable Moore, Foster Co., bankers, to guarantee payment to the contractors. This is the construction placed upon the clause in the power by the Supreme Court in answer to question certified to that court. Sullivan v. Miller, 86 Tex. 677 [86 Tex. 677].
The defendants below did not pay twenty per cent of the amount for constructing the ten miles of road. They paid $2700. Twenty per cent of the amount of cost of construction of the ten miles would be over $4200.
Appellants say this court erred in allowing remittitur of $1579.50, because the contract the agent undertook to make was not severable and could not be adopted in part and repudiated in part.
The items for the work were distinct and were to be paid for in distinct stated prices; the clearing and grubbing was a separate undertaking, for which appellants, by the terms of the contract, were to pay $15 per acre. The amount remitted by this court was the exact amount sued for for clearing and grubbing, the exact and only amount proved, and the exact amount recovered by the judgment of the lower court for that item. The contractors built and completed ten miles of the grading in full compliance with the terms of the contract, from Fredericksburg north, which, at contract price for the various items of work, amounted to $22,704.09, from which deduct the $2700 paid and the $1579.50 for clearing and grubbing, and the amount obtained is the amount for which the judgment of the lower court should have been, and for which we allowed the judgment to stand.
We think the remittitur was properly allowed, it being certainly ascertained from the contract, the proof of performance and the judgment of the lower court.
Other grounds for rehearing need not be noticed, none of them should be sustained, and the motion is overruled.
Motion overruled.
Chief Justice Fisher did not sit in trial of the motion.
Writ of error refused. *Page 133