Kilgore v. Baptist Educational Society , 89 Tex. 465 ( 1896 )

We understand the certificate, which includes question and lengthy explanatory statement, to submit for the determination of this court the following question of law:

Was it error for the trial court to charge the jury at request of plaintiff that the estimates furnished by the architect are presumed to be correct and that the burden is upon defendant to show the contrary by establishing fraud on part of the architect by a preponderance of evidence, in a case where plaintiff and defendant had agreed that the former should pay the latter as the work on the building progressed according to the estimates of the architect, and the defendant by pleading and proof attacked the estimates on the ground that they were fraudulently issued by the architect for an amount grossly disproportionate to the amount of work done, for the purpose of forcing him to abandon the contract; "or in other words, was it proper to instruct the jury that the presumption was in favor of the correctness of the architect's estimates?"

Under a firmly established rule of law, the parties having agreed upon the estimates of the architect as the work progressed, as the means of determining the extent of performance and the amount to be paid from time to time under the terms of the contract, such estimates, when made, established between the parties the facts therein found. They were not merely evidence from which a court or jury might have found or ought to have found such facts, but they were themselves findings of such facts by the architect, just as awards or judgments are findings of the facts of indebtedness therein stated by arbitrators or courts. It needed no finding of the jury to establish the facts stated in the findings of the architect; and therefore it was proper for the court to instruct that the law presumed them correct in the first instance, leaving to the jury the question, whether defendant had shown such facts as would in law destroy the findings of the architect. Such a charge was not upon the weight to be given to the estimates as evidence of the amounts due at their respective dates; for as we have seen they were not merely evidence from which the jury might have found such amounts, but were themselves findings thereof by the architect, as to the legal effect of which the plaintiff was entitled to have the jury instructed. In Railway v. Shirley, 31 S.W. Rep., 292, 89 Texas, it was said that "although the instruments relied upon by defendant as showing its title were assailed by plaintiff for fraud in their execution, it was the duty of the court to construe them, and instruct the jury as to their legal effect, subject to their finding on the issue of fraud." The only question for the jury to pass upon with reference to such estimates was, whether defendant was entitled to have them set aside and held for naught upon the issue of fraud presented by his answer. Unless he prevailed upon this issue he was in law concluded by the estimates. Railway v. Henry, 65 Tex. 685; Railway v. March, 114 U.S. 549, 5 Sup.Ct. Rep., 1035; Jones v. Risley, 32 S.W. Rep., 1027.

We therefore answer that it was not error to instruct the jury that the presumption was in favor of the correctness of the estimates.