Crawford v. Wellington Railroad Committee , 174 S.W. 1004 ( 1915 )

On Motion for Rehearing Appellees, in their motion for rehearing, in their fourth assignment, insist that we were in error in holding that the original pleadings of appellees evidence an intention to rescind the contract between the railroad committee (appellees) and the Altus, Lubbock, Roswell El Paso Railroad Company and Edward Kennedy The assignment then undertakes to set out the contents of the original pleadings of the parties, but we do not find such pleadings, as contended by appellees, in this record, hence cannot be considered. The original pleadings we find condensed by agreement of all parties in the statement of facts, that of appellees as follows:

"May 16, 1910.

"The Wellington Railroad Committee and other makers of the railroad bonus notes filed in said cause No. 181, there answered to the petition of Crawford and Collingsworth and to the cross-action of the Altus, Lubbock. Roswell Ell Paso Railroad Company and Edward Kennedy, setting up failure to comply with the construction contract and nonliability on the grade and other bonus notes."

"May 17, 1910.

"The Wellington Railroad Committee and others (now prosecuting as plaintiffs in this action) filed in said cause No. 181 their plea in reconvention in due form against the Altus, Lubbock; Roswell El Paso Railroad Company and Edward Kennedy, C. W. Crawford, and F. T. Collingsworth, alleging, in substance, the failure to construct the railroad between the towns of Hollis and Wellington, and breach of the construction contract with the Altus, Lubbock, Roswell El Paso Railroad Company and Edward Kennedy, the failure of consideration for the railroad bonus notes, including the $16,000 in grade notes sued for and other notes, aggregating $20,000, payable upon completion of said railroad, and alleging that said grade notes were then in possession of the First National Bank of Wellington and C.J. Glenn, who hold the same in escrow for the party finally entitled thereto under the construction contracts, and praying that the bank and said Glenn be made parties to said action and for judgment against all parties declaring said construction contract and all said bonus notes canceled, null, and void, and for possession of said grade notes."

Now, if the substance of the original pleadings of appellees, as set out in the statement of facts and agreed to by all parties, is incorrect, and does not show the true issues as presented in the whole pleading, we are unable to go outside the record to find such error, if in existence; and such affirmative pleading in reconvention filed before the maturity of the contract, in connection with pleadings subsequently filed, exhibit a continued and systematic manifestation of a repudiation of the contract and a disposition not to be bound upon the same, claiming that said contract was void against said railroad committee.

Counsel, in their oral argument on this motion, strenuously insist that the contract between the appellees and Kennedy and the railroad company is an entirety. We agree with them that the contract on its face is entire, with payments in installments, as held in Jones v. Gammel-Statesman Publishing Co., 94 S.W. 195; and Id., 100 Tex. 331,99 S.W. 701, 8 L.R.A. (N.S.) 1197; but before the expiration of the time for the completion of the contract, and when appellants claim that the first installment is due, the appellees, by their pleadings, as above quoted, refused payment and repudiate the contract and declare the contract and all bonus notes canceled, which not only includes the grade notes but the notes for final payment not yet earned by the final completion of the railroad, thus seeking to abrogate the whole contract before it can or is required to be performed by the railroad company. Appellees thereby place themselves in a position that they cannot complain if the railroad company refuses to complete the contract (Hardeman-King Lumber Co. v. Hampton Bros., 104 Tex. 585, 142 S.W. 867; Id., 130 S.W. 647), which cause, as shown by the opinion of the Court of Civil Appeals (130 S.W. supra), affirmed by Chief Justice Brown of the Supreme Court, in reality upon an analysis involved an entire contract, but which was repudiated by the lumber company before final performance. Also see McLane v. Elder, 23 S.W. 757, above cited.

After an extended oral argument by counsel for appellees, we have carefully gone over this record again, and believe that this case had been properly reversed as to all the appellants.

It was suggested in oral argument by appellees' counsel that the appeal bond in this case is defective in that it is not made payable to all the opposite parties, and that therefore this court is without jurisdiction. The Acts of 1905, c. 115, now article 2104 of the Revised Statutes, Vernon's Sayles', authorizes the amendment of appeal bonds from all courts, both as to matters of form and substance. When the appeal bond was filed, this court acquired jurisdiction of this cause, and, if it was informal either in matters of form or substance, appellees should have filed their formal motion, pointing out the defect in time, that appellants could have amended, if found defective. Oliver v. Lone Star, etc., Ass'n, 136 S.W. 508.

The motion for rehearing is therefore overruled.