*1 v. LIMESTONE et al. & WILDER BRAMMER 802.) (No. et al. COUNTY Appeals Dec. Waco. of Texas.
Court of Civil 5, 1929.
Rehearing Denied Jan. *2 Ezell, Antonio, M.A. Dodson & of San
Blackmon, Groesbeck, Seay, Seay, Malone Lipscomb, Dallas, & Mays, & A. P. and Richard Corsicana, appellants. Bradley J. B. & B. L. Mr. Mrs. O. S. & Bradley, Machen, Groesbeck, all of and C. H. Mexia, appellees. ap- 1925, BAROUS, In the summer J. County, pellee, des- hereinafter Limestone ignated a contract entered into appellants hereinafter Brammer & contractors, of which under the terms called miles about 18 were to build the contractors The United States of macadamized roads. Guaranty Company, Fidelity hereinafter surety company, signed contrac- called guar- bond, -under terms of which tors’ build said anteed that the spec- plans and road accordance with 1926, eight- 29, ifications. December On pay- partial as a basis eenth ment, .commissioners’ approved, county, and 30,1926, paid. allowed, On December county a letter to the wrote surety stating company, finally paid accepted completed surety company for, was dis- January charged. the final esti- On in the sum asked for mate of commissioners? -the January refused. On filed to recover this suit wasi damages which it claimed it suffered rea- having son of the roads been built accord- -the under which building to be called for the built pieces seven different and embrace facts, going pages in the statement of method, man- minutest detail as to the in tbe construc- should paid by used contractors. ner, material to be employed The tled to it was enti- roads. tion of Horace and superintend interest on of mon- all sums ey injuries, supervise wrongs, roads. the date the lie delinquencies judg- occurred. It asked for made between contract contractors debts, reimbursements, specifically advances, provides en- ment that said for its *3 questions damages, interest, general special in gineer arising ties, all and as referee and shall act par- the lief. under the contract final and bind- his decision shall and county by alleged The a trial amendment provides parties. that the It all county county that the various'estimates made the such altera- the make has engineer, approved by which were the plans of the in the or in character tions auditor, acceptance as well as the roads the reference desirable, necessary or andthe various orders work as he considered in made change provided ma- did not the alterations thereto, approved by were made and the com- terially original plans and missioners’ court as a result of a custom that very years county’s pleadings had existed volumi- The in the commissioners’ nous, covering pages. alleged that Limestone some 75 under which all county being conspiracy work precinct be- in existed a commissioner’s a tween the and Mr. county engineer, approved by contractors, court, the county Kennedy, unless the precinct commissioner commissioner from the precinct being being where the were work whose in done made some protest. structed; county alleged that reason thereof contrac- The that the commis- Kennedy, according sioner in precinct roads tors failed to construct the in whose engi- controversy specifications; plans being built, were and was in con- spiracy reports engineer, neer estimates to the commissioners’ that the and fraudulent and and made false contractors and the court; and for said protest reason against entered no Kennedy, county Mr. allowance commissioner the various estimates and built, precinct being orders made where the roads were relative to the construction of knowledge part said roads. without members of the commissioners’ into said on the of the other court, entered urged The a number of that, conspiracy, as a and result special exceptions pleadings to the of the conspiracy existing par- between said as county. They specially further excepted to ties, various as made estimates portion the attempted county’s pleadings which paid by were allowed the com- and plead existing a custom county al- court. further missioners’ leged court, commissioners’ court, under which said engineer, in- that its Mr. any investigation, approved without for the bills making competent that, dishonest,' performed on the because the progressed in’ as the work the estimates commissioner made no com- engineer, performing he acted the service as and plaint with reference thereto. contrac- fraudulently. county dishonestly al- specially pleaded tors further that all the separate leged and different detail some work done on the roads had been under the the contractors acts failed it claimed which supervision county direct and control of the neglected to do engineer, the'changes and that all that had plans as made construction thereof were alleged specifications. The further instance, request, at the under the direc- paid contractors certain to the it tion of said and that under the work, money al- extra it sums terms the contract all bound leged had not earned and were by specially pleaded engineer. the acts of further being to, items, II and listed not entitled 5, 1928, that on October aggregating $78,814.56. The in number and accept- court had commissioners’ an order alleged that, further the 17.94 three of seven ed roads embraced according road had been constructed miles to the miles, having contract, total of 7.78 have been thereby estopped from claim- the ing $352,881.11; “by reason of the worth damages with reference thereto. neglect of the contractors to com- failure company adopted plead- ply alleged,” the terms of contract as herein ings leged in addition al- roads as the con- constructed liability by $161,705.- relieved from all were not more than that it was tractors worth thereby there had been a num- fact that reason of the named, changes, damaged $191,174.74,being sum ber of material made specifications after it it had the contractors over and bond; signed county alleged executed what the as had* above roads further, alleged the coun- it was relieved because built were worth. The them, naming ty retain parties, the ten failed and being on each the roads while built, sum of which it L02' evidence, nine if such roads was submitted The cause giving not so Yes. of other constructed? Answer: special number After issues. instructions, paragraph special S, “(7) you evidence before from the Do find answering determining “In stated: you the allowance you herein, not consider will issues ren- of Bramer estimates departure change aas material material, services, fur- dered and labor de- terms and performed in nished and changes, partures order suit, was induced involved in this court.” the commissioners procured by cus- a effect, and on account of reason existed, tom, an- if such custom issues submitted .Said the commission- as follows: account thereto were swers of the fur- ers done or court for or material labor “(1) you & Wilder find that Bramer Do precinct would nished in be commissioner’s departed materially employees from the their *4 objected investigation paid without unless provisions in evi- of the terms and dence and failed contract precinct? An- to commissionerof such perform for said contract to of said roads Yes. swer: substantial construction provisions? you “(8) compliance from before Do find the evidence its terms with ' pay- you allowance, approval and Yes. Answer: by plaintiffs paid to ment of the several sums persons “(2) roads such and answer whether Rind guarding Co- for or substantially inferior of were as constructed ‘Nigger induced manche Creek’ road was or utility quality and less serviceable value procured by and custom on of reason and account they if have constructed would than substantial existing, effect, ac- compliance the terms with count court to the commissioners they provisions if were not of said for labor or material furnished in done or Yes. constructed. Answer: so paid commissioner’s would be “(3) mon- what of Find and answer investigation objected by the without unless required, ey any, time if have at the it would precinct? Answer: said commissioner of plaintiffs, to to were turned over said roads Yes. repaired or them have have been of utility so reconstructed you plaintiffs “(9) re- should Do find substantially quality, the same they sums, any, as cover may such if interest value as would and serviceable recover herein? Answer: be entitled to if constructed in substantial com- have been No.” pliance said with terms were contractors record shows specifications, if not contract and so constructed. engaged roads the construction of $105,719.40. Answer: controversy about 16 months. you “(4) at find that the time such roads Do provided least once each that at plaintiffs there were were turned over month county engineer an estimate should be made requiring mending in them defects material the amount of material comply patching to make them or terms done, furnished and work and that the provisions of contract and cent, pay per 90 each specifications? Answer: Yes. cent, taining ly completed. per final- until the was 10 “(5) Find and answer what amount of mon- During of the the construction ey, if it would at the time were made estimates roads different 18 plaintiffs the roads were turned over approved by county engineer, patched mended or them have them provisions so as make auditor, the com- and allowed substantially comply with the terms and missioners’, last of said 18 esti- court. The the contract 29, 1926, mates on December was made were not so constructed? Answer: $36,078.81. It that the total stated was $105,719.40. the construction of amount for “(6) you already paid $472,077.75, $435,908.44, find from the Do evidence that that the Kennedy Boyett conspired leaving Horace with and John due under the contract $36,078.71, other No each either of them the amount of said estimate. conspired provided with J. L. Bramer and H. S. retention- in said estimate. 10 procure them, This estimate or either of was on said commissioners court the timates, nished, es- allowed and date them, appears or either of fur- that the material court. tractors, performed engineer labor ren- understood services dered Bramer Wilder in the final estimate for the the said estimate was only question, knowing time, roads in at the that the they did, thing be was a that said Bramer & determined claim Wilder had left not constructed said roads or furnished the contractors for about engineer
material and rendered
said work
had not allowed and which was
and labor
for which said
in said estimate. On December
estimates were
embraced
rendered in
compliance
substantial
notified
contract and
having intentionally
fraudulently
had with
contractors
accepted
conspiracy,
entered
charged
into a
he
completed
and are
and that
háving
payment had been with
same,
paid,
acts
final
furtherance
discharged thereof,
permitted
should be
that the bondsmen
and
further
testify
categorically, denying having
refused
liability. The
entered
agreement.
weight
approve
fraudulent
the claim of
given
16, 1927,
January
testimony
to said
$9,4S1item,
course is
the
commissioners’
During
pay
a matter for
same.
The rule seems
to be
be
party may
settled
proved by
that the
intention
specifica-
Odle,
his own
changes
were made
statements. Wade v.
number
App. 656,
(error
21 Tex.
fused);
Civ.
embraced
S. W. 786
mile
the road
re
One
tions.
original
Waggoner
by agreement
(Tex.
(Tex.
Greene
Ref. Co.
S.
Dean v. Dean
and the contractors eliminated.
17 feet
Dove
widened
v. Coleman
of the road was
Some
width,
changed.
the concrete
S. W. 917.
and the thickness
county employed
men to
Appellants contend that
the trial
rock to
police
the roads.
It authorized
court should have set aside the verdict and
shipped
train.
a number of
hauled instead
be
was
findings
jury,
appears
because it
testimony indicating
jurors
the statements of the
at the time the
the commis-
other
sioners’
them
at
were ratified
verdict was returned into
and before
reported
court when same
accepted
same was
and the
filed
dis
*5
engineer
by
engineer.
testified
the
The
charged,
jury
that the
had
embraced
said
length
great
about
and in
detail
by
charge
verdict items not authorized
the
of
method of
in the
assignments.
the court. We sustain these
In
The increased
of the roads'.
determining
jury
required
their verdict the
is
original
was more than
from the
contract
cost
$100,000.
ering
accept
court,
to
the law from the
and it is not
testimony
voluminous,
cov-
is
The
authorized to consider
items other than
only testimony
2,200 pages.
some
charge
those embraced in the court’s
in' arriv
would
what it
cost to
with reference to
ing
sought
pleadings
at
appellee
its
In
verdict.
by the
Mr.
the roads
construct
$2,409
to
polic
recover
it had
great
Witt,
at
who went into the matter
ing
sought
during
construction,
their
and
$276,000
length and
that it
cost
stated
would
$78,814.56
to recover
it claimed it had
build them in
to reconstruct the roads and
paid for extra work that was not due under
compliance
plans
with the
and
substantial
$161,705.37
the
would
and
it claimed it
specifications, using
salvaged
what
be
could
cost,
repair
to reconstruct or
the roads
of
and
that
out
done
roads were built
the material
had been
comply
plans
spec
make them
to
with the
and
by
After the
the former contractors.
only
ifications. The court
to
submitted
a
jury
questions
as
the cost of
recon
dug
of holes
order to
number
make
been constructed in accordance with
therein
structing, repairing, mending,
patching
or
they had
test to
Whether
a
ascertain
as
embraced
issues
each of
plans
jury
“$105,719.40.” By
which the
answered
engineers
had
who
and
been
question
appellee
jury
9 the court asked the
whether
employed by
county to make this in-
should recover’ interest
such
repair
spection
or mend or
testified that to
jury
appellee
as the
sums
found
was entitled
$8,000
patch
between
said roads would cost
jury
When
recover.
returned its
ver
$9,000.
highest
This was the
estimate dict,
accepted by
and before same was
by any
on the cost of
made
repairing
of
witnesses
court, they
sue,
polled
separate
on each
is
mending
patching or
said
or
roads.
they
they
stated
to the
that
assignments
Appellants,
they
of
embraced
the amount
found for
’had
propositions thereunder,
appellee
by
money paid
error and
that
contend
3 and the5
issues
refusing
per
in error in
the court was
appellant
testify
they
figured
Wilder
that he
did
mit
had
of
that
amount
interest
agree
into,
they thought appellee
he
enter
neither did
enter
not
which
recover,
entitled to
Boy-
into,
with
fraudulent scheme
either
and had embraced same
Kennedy
county. They
they
They
or
ett
also
amount.
further stated
had
complain
special
“No,”
trial court’s
refusal to
issue No. 9
answered
because
engineer Boyett
testify
permit
figured
they
that he
said interest themselves and
any agreement
not enter into
with ei
did
to the amount
their
had added it
verdict.
Kennedy
or
the contractors with
of said
ther
Neither
items was authorized
favoring
They
purpose
charge
the contractors.
court’s
be embraced
amount
court,
complain
recovery.
appellee’s
way
of the trial
the refusal
is no
also
to
There
Kennedy
testify
permit the witness
from the record
in
determine
any agreement
jury
enter
not
with the
in their
he did
included
find
terest
ings.
or the
to defraud
did not state the rate
inter
contractors
county.
assignments.
they
est,
sustain these
We
the method
had de
or
same,
charged,
ease,
as in
are
this
the amount of interest
Where
termined
assignments.
findings.
is sub-
We sustain these
in said
included
special
guaranteed
mitted
issue No. 6 a number
by'jury
our
Con
is
to a trial
separate
By
jury
issue
and,
distinct issues.
stitution,
when
(1)
jury
charge
governed
in the
were called
determine:
is
Kennedy
Boyett
conspired
right.
Whether
this constitutional
denial of
effect
procure
313;
estimates;
(2)
Kay,
Marsalis
whether
Tex.
v.
Collins
v
Boyett
1070;
Kennedy
con-
Patton,
W.
at the time
18 S.
.
spired,
they did,
knowledge
Payne
266 S.
Smith
v.
Ry.
Dod fact
Brammer & Wilder had not
Louis Southwestern
St.
compliance
Interna
structed the roads in
with
285 S. W.
son
(Tex. contract;
(3)
Cooper
whether
v.Co.
Northern
tional-Great
compliance
S.W.(2d)
the con-
were constructed
tract
App.) 1
Com.
conspire. The
the time
did so
at
special issue
Appellants
contend
questions
issue also embraces the
three
question
of law
a mixed
1 submitted
No.
fact,
whether
separately
a con-
relate to
jury to determine
asked
Boyett
spiracy
Wild-
and Brammer &
departed mate
er,
Kennedy
Brammer &
as between
provisions
rially
from the
very
think
is
confus-
Wilder. We
the issue
in substan
to construct
had failed
extremely
understand,
difficult to
contract; and, fur
compliance
tial
gen-
submitted more in the
of a
as
eral
is
nature
issue.
and in
multifarious
ther,
said issue
charge
than
prop
charge.
general
These
nature of
complain
Appellants
in effect
The issue
of the action
sustained.
ositions
asked
the
80 or
refusing
permit
the coun
determine the
the trial court
(cid:127)
ty engineer,
testify
contained
Mr.
to
he had testified
thereof,
changes,
pages
the
detail,
about
more
un
whether the contractors
determine
them to
had
authority.
materially
supervision
departed
der his
and with his
light
proposition.
this
contract
to
terms,
We sustain
read
specifically
changes
make
authorized the
No.
instruction
*6
specifications
whether those
determine
in
No. 1 to
said issue
so,
material,
comply therewith,
changes
if
whether
and makes
contractors to
by
engineer binding
parties.
the commission
all
authorized
the acts of the
an
been
any
duty
Unquestionably,
by
engineer,
changes
of the court
made
that were
It was
ers’ court.
construe
jury
province
the direction
contractors under
one,,
acting
good
which
if the
was
in
was
determine
faith,
ty.
changes pleaded,
absolutely binding
specific
upon
or more
the coun
34
offered,
proof
Tendick,
488, 11
support
had been
Boettler v.
73 Tex.
S. W.
in
had
authorized.
which
497,
made,
270; Kilgore Baptist
whether
been
5
A.
L. R.
v.
So
been
undisputed
ciety,
465,
facts
there
Under
89
105
Co.,
63,
entering judgment Antonio Loan & Trust
101 Tex.
favor and thereafter
its
876,
(N. S.)
appellee.
against
S. W.
L. R.
S.
A.
favor of
it in
364,
Engineering
Rep. 803;
130 Am.
Hess
St.
& Skinner
is
The law
well settled that
Turney,
Co. v.
110 Tex.
submit, separate
trial
court
Norton,
Bullard v.
107 Tex.
plead
ly
distinctly,
matters
defensive
Drug
182 S. W.
Wilson v. W.
J.
Crowdus
respective
defendants
which
ed
there has been submitted
Com.