| Tex. App. | Dec 12, 1903
Appellee sued the firm of McCabe Steen and one E.L. Le May for the contract price of certain labor done, etc., in the construction of the railroad of the Texas Southern Railway Company. As alleged the contract therefor was made with McCabe Steen and Le May jointly, as contractors of said railway company, and prayer was for judgment against them for the amount of the alleged balance due, with foreclosure of the asserted lien against the railway. Final judgment was for appellee against McCabe Steen for $1058.28, and in favor of Le May and the railway company, hence this appeal by McCabe Steen.
The charge of the court is assailed as erroneous in that, among other things, the jury were instructed in substance that if they should find from the evidence that the contract declared upon had been made by Le May as an authorized agent of McCabe Steen, said firm was liable for such unpaid sum as the jury should find was due appellee by virtue of the labor, etc., done under the contract. The grounds of objection, which will be disposed of in the inverse order of their presentation, are that "said charge was not justified by the plaintiff's pleadings in the case, as plaintiff alleged a joint cause of action against E.A. Le May and McCabe Steen, and did not allege that E.A. Le May had made the contract sued upon as the agent of McCabe Steen; (b) because the evidence did not warrant such charge in this, that there was no evidence showing that E.A. Le May, in making the contract sued upon, was acting as the agent of McCabe Steen."
We think the evidence not only authorized the submission of the issue, but that it is also sufficient to sustain the verdict and judgment *37 thereon in appellee's favor. Appellee testified in substance that he applied to the chief engineer of the defendant railway company for employment, and was by him referred to McCabe Steen; that he then wrote to McCabe Steen, and in response received a letter from Le May to come to Sherman; that he went to McCabe Steen's office in Sherman and there found Le May apparently in charge of their office, and agreed with him as to the price to be paid for hauling done by him without disclosing his connection with McCabe Steen; and that he never heard of Le May being a subcontractor of McCabe Steen's until after he had done the hauling claimed; that from December to March, McCabe Steen had paid him for his work on estimates and orders from Le May; that McCabe directed him to do some of the work; that the teams and implements used by Le May belonged to McCabe Steen; that McCabe Steen paid him for hauling on Le May's estimates; that when he made the contract with Le May he was to be paid by McCabe Steen.
McCabe testified in substance that he might have directed Le May to answer plaintiff's letter — that such things occurred in their office every day; that when plaintiff applied to him for payment of the bill sued on he declined to pay it because it was for more than the work was worth, but made no claim that the same was owing by Le May as subcontractor. John C. King, a witness for defendants, testified in substance that he worked for McCabe Steen, using their teams on the work.
V.E. Steen, of the firm of McCabe Steen, testified in substance that he was present when plaintiff presented his bill for balance sued for, and that at that time there was no objection on their part to paying what was honestly due him; that the teams, implements and tools used by Le May belonged to McCabe Steen, and that there had been no settlement between them and Le May. "In addition to which appellants, among other pleas, contested the extent of appellee's claim, alleging that but $121.80 was due appellee thereon, which amount they tendered in court and prayed to be discharged from * * * further liability to him." From all which it seems clear to us that the jury were authorized to conclude that Le May, in making the contract with appellee, was acting for and in the interest of McCabe Steen, and not as an independent subcontractor, as appellants specially answered.
But what of the first objection made to the charge? As alleged, the contract was with McCabe Steen and Le May. As proved, McCabe Steen made the contract by their agent Le May, who was relieved on that ground, and appellee hence failed in his proof and case as to Le May. There was no objection to the evidence, and it is perhaps to be doubted whether advantage of what may be plausibly urged as constituting at most a mere variance between the allegation and proof can be made available on objection to the charge. Moffatt v. Sydnor,
In addition to the tender hereinbefore mentioned appellants also pleaded specially as follows: "Third. Said defendants specially deny that they were partners with defendant Le May, or ever made any contract with plaintiff concerning the matters alleged in plaintiff's petition, and that if plaintiff ever made any contract with any person relating to same, that he made such contract with defendant Le May, and that said defendant Le May had no relation to them except that he took from them a subcontract to do, himself, the work of hauling piling and lumber on the part of the railway mentioned in plaintiff's petition, these defendants being the contractors to do same under a contract with the defendant railway company, and of this they put themselves upon the country."
This plea, to which the law supplies the general denial without a replication, put in issue Le May's true relation to the contract and to McCabe Steen. Under his general denial appellee could prove any fact disproving the material allegations of the special plea. Winn v. Gilmer,
Appellants also assign error to the judgment in favor of Le May and the railway company. They have, however, asserted no right or equity against either in their pleading, and we think it manifest appellants have no cause of complaint in these particulars.
The judgment will be affirmed.
Affirmed.
Writ of error refused. *39