Opinion
Writ of error dismissed.
November 24, 1928. Rehearing Denied December 6, 1928.
Appeal from District Court, Fannin County; Geo. P. Blackburn, Judge.
Suit by Kinnison Bros. against John P. Steger. Judgment for defendant, and plaintiffs appeal. Affirmed.
The suit was by appellants, a partnership, to recover of appellee $2,571 claimed to be the balance due and owing upon a steam-heating plant sold to appellee for the price of $7,571. The suit was filed July 5, 1925. The petition alleged that the sale and installation of the steam-heating plant in the First Baptist Church at Bonham was upon an oral agreement made with the appellee on December 31, 1920, for the contract price of $7,571, and that he paid the sum of $5,000 on March 28, 1921; that on May 1, 1922, the appellee renewed and ratified the original obligation, and contracted in writing to pay the balance owing of $2,571, when he settled certain disputed claims that he held against said First Baptist Church for the furnishing of material and labor in the construction thereof; that thereafter the defendant did settle said claims, but failed and refused to pay the plaintiffs. The defendant duly pleaded the two-year statute of limitation, a general denial, and specially that, if at any time he agreed to pay the $2,571, the same was conditioned upon his recovery from the trustees of the First Baptist Church of a sufficient sum of money to pay that sum, and that such condition and contingency had never taken place, and will not take place, and the obligation is therefore not binding.
It appears that J. W. Miller had the contract to build the First Baptist Church at Bonham. The installation of a hot-air heating apparatus was included. Later the trustees of the church concluded to change the original plan and have in its stead a steam-heating plant. At some time during the construction of the building, and for reasons not clearly explained, it became necessary for the appellee, as surety on the bond of Mr. Miller, to see that the building was completed. It does not appear that Mr. Miller was discharged from the contract. It seems to be conceded that "he finished it as far as that is concerned." The appellee then phoned the appellants in Dallas, informing them of the changed plan, and asking for prices on a steam-heating plant. They submitted plans and price for the complete installation of the plant. The appellants were conducting the business of selling and installing steam and hot-air heating plants.
The evidence in behalf of the appellants showed that there "was just a formal verbal agreement had with Mr. Steger" on December 31, 1920, to install the plant for the price of $7,571; that "he said he would pay the money for installing the plant"; that "the contract was a cash contract," the price payable when the plant "was installed in the building"; that "it was completed about April 1, 1921."
The appellee testified:
"Mr. Kinnison sold the plant to the preacher and Mr. Bradfleld and the others, I don't remember exactly, of the board. I never contracted with him to pay for the concern at all. He was to get the money, like I did, through the church. He was to give me a commission for selling it. I was to do my best to collect it for him. * * * I never did agree to pay Mr. Kinnison for this heating plant; he never asked me to agree to pay him."
The single issue submitted to the jury was: "Did John P. Steger buy the steam heating plant from Kinnisons?" The jury answered, "Yes." The following letter was proven and in evidence:
"Dallas, Texas, April 29th, 1922.
"Mr. John P. Steger, Bonham, Texas — Dear Sir: We have written you a number of letters regarding balance due us on the Heating apparatus for the First Baptist Church, and find that we have had no reply to any of these letters.
"We will be obliged to turn this account over to our attorneys for collection, as we cannot afford to wait any longer on you, as you will not reply to our letters or give us any information as to when you expect to pay the account. So, unless we hear from you in reply to this letter in a few days, we will take this method of undertaking to collect the account.
"Yours truly, Kinnison Bros.,
"Per H. A. Kinnison."
At the bottom of the letter appears the following:
"Mr. Kinnison, we have never been able to get settlement in court. Now if you prefer to sue or wait until I get the money to pay you all O. K., but if you do sue you will wait quite a long while, as I am doing all I can to collect and when I receive the money you will get yours. They never payed a cent since you got your payment. I thought you knew all this. John P. Steger."
The letter with the reply above was mailed back to appellants on May 1, 1922. It appears that some time during the construction of the building George Buettner filed suit in the district court of Fannin county against J. W. Miller, the contractor, and the appellee, his bondsman, wherein Buettner undertook to establish certain claims for material furnished and to establish liens against the church property for the payment of such indebtedness. Thereafter the appellee, on June 14, 1923, filed suit in the district court against the trustees of the church to recover moneys alleged to be due him by the church and moneys due other parties by the church, including the purchase price of the heating plant gotten from appellants. The two suits were consolidated. Many creditors of the contractors intervened. The appellants intervened on May 25, 1925, seeking to enforce its claim for the balance owing of $2,571. The court, it appears, sustained an exception to the plea of appellants. The suits resulted in the balance of the contract price due by the First Baptist Church and on deposit in the Fannin County State Bank being paid to the parties who had fixed liens against the property. The $5,000 was paid to appellants some time before this date, on March 28, 1921. It is clear that "the Baptist Church" paid the money direct to "parties who had filed liens against the church property." In respect to the $5,000 payment the testimony for appellants shows that: "I don't know that the Baptist Church paid the $5.000.00; we got it through Mr. Steger." Appellee testified: "He, (Kinnison) got a deposit slip from the First Baptist Church for the $5,000.00; that is my recollection. They paid him by a deposit slip." The appellee's suit was, it appears, dismissed on June 15, 1925, and he did not recover anything on the claim asserted by him.
The attorney in the suit, and a trustee of the church, testified: "John P. Steger personally did not recover one penny from the Baptist Church. There was a sum of money Impounded which exceeded $2,571.00, the exact amount I don't remember. The Baptist Church paid that money to the parties who had filed liens against the property in claims against J. W. Miller, who had the contract to build the church. The bank paid, according to my recollection, a claim of the Davis Hardware Company; and some other claims were paid, but Mr. Steger did not recover a penny."
Appellee testified: "I never got any money in this settlement. I lost a lot of money on it." On cross-examination: "Q. Mr. Steger, since the letter you wrote Mr. Kinnison on the bottom of his letter have you ever been financially able to pay this $2,500.00? A. Why, I have had lots of $2,500.00 since then. I have paid a good many of them several times since then; I paid a good many of them on this church bill, and a good many other bills too."
The court entered judgment in favor of the defendant, upon the ground, as recited in the judgment, that "the original claim of the plaintiffs is barred by the statute of limitation, and the written instrument relied upon by plaintiffs is conditional and was intended to and did promise to pay the plaintiffs only in event John P. Steger received and collected money from the suit he had against the First Baptist Church; that the condition never transpired, and that John P. Steger did not receive any money by reason of his suit against the First Baptist Church."
Burgess, Burgess, Chrestman Brundridge, of Dallas, for appellants.
Cunningham Lipscomb, of Bonham, for appellee.
The jury made the finding upon the controverted issue that the sale and installation of the steam-heating plant was upon a contract made by appellant, not with the trustees of the church, but with the appellee. This original contract was shown to have been an oral one, of date December 31, 1920. The appellant moved for judgment on the jury verdict; and the court, in view of findings of fact made by him, refused the motion. "The sole question for determination on this appeal," as stated in appellants' brief, "is whether or not the trial court erred in overruling plaintiffs' motion for Judgment and in rendering judgment for the defendant on the ground that the condition in the defendant's written and signed acknowledgment of the justness of the debt had not transpired. We believe that the trial court was wrong in that finding."
The present suit is founded on the written memorandum in evidence. Such new contract constitutes the debt, and the original indebtedness serves only to show the consideration. Interstate B. L. Ass'n v. Goforth, 94 Tex. 259, 59 S.W. 871; Cotulla v. Urbahn, 104 Tex. 208, 135 S.W. 1159, 34 L.R.A. (N.S.) 345, Ann.Cas. 1914B, 217. It is believed that the memorandum by its terms specified that payment was to depend on the contingency or condition of John P. Steger's receiving the money from the Baptist Church with which to pay appellants. The circumstances under which it was given emphasize that purpose and meaning of the memorandum. Such condition was substantially pleaded by appellant as follows: "On or about May 1, 1922, John P. Steger renewed and ratified the original obligation, and did agree in writing to pay the balance, $2,571.00, when he should settle certain disputed claims that he had against said First Baptist Church for the furnishing of material and labor in the construction thereof."
The condition is of similar character to the conditions in the cases of York v. Hughes (Tex. Con. App.) 286 S.W. 165; Rowlett v. Lane, 43 Tex. 274; Mitchell v. Clay, 8 Tex. 443. The fulfillment of the condition became a prerequisite to liability on this new promise sued on, and the burden of proof was upon appellants to establish the happening of the events upon which the condition was based. The court found as a fact that appellee did not receive money from the trustees of the First Baptist Church in any amount which he could apply upon the debt of appellants. It seems that the contract price of the building was otherwise exhausted in construction. We believe that the finding by the court is not without sufficient evidence to support it. In view of such finding, the court did not err in overruling the motion of appellants.
The judgment is affirmed.