John Cooper v. John McCrimmin, 33 Tex. 383

Morrill, C. J. This.suit was.on a subscription paper to build a bridge, as follows: “ We whose names appear below agree and bind ourselves to pay the amount annexed to our names to any person or contractor who may hereafter build a free bridge across Mud creek, at the place known as the burnt bridge on the road leading from the town of Rusk in Cherokee county to Henderson in Rusk county, and the same to be paid when the bridge is c:mpleted.” Among others the defendant signed his name to the instrument, and annexed ten dollars to his name.

The document was executed in the summer of 1857, and the plaintiff made the bridge described in 1858. It is not contended that the plaintiff did not make the bridge or that the bridge was defective. On the contrary it is beyond controversy that the bridge was made at the place, and was needful to the neighborhood, including the defendant. The leading case in the Texas Reports, Hopkins v. Upshur’, 20 Texas, 89, seems to he decisive of all the points that can possibly be raised here.

In that case the contract was, “ we the undersigned agree to donate the cash or property set opposite our names, for the purpose of erecting a Protestant Episcopal church in the city of Austin.” It was contended in that case that first, it is wanting in proper parties, to-wit: a payee; second, it is wanting in mutuality; third, it is wanting in a valid consideration. The court, however, considered the objections invalid, and gave a judgment agfinst the subscriber, reversing the judgment of the district court. In the case of Doyle v.

Glasscock, 24 Texas, 200, this court reviewed and approved the points established in the first named case. We may therefore consider these questions as the law of the State. In the case before the court, the contract was “to pay any person who may hereafter build a free bridge.” It was like anote payable to bearer, so far as relates to the payee. The consideration was not only a positive benefit to the promissor, but was the labor of the payee.

The time of payment was when the bridge was completed, and as the instrument referred to no particular time for the completion of the bridge, and as the bridge was made during the summer afterwards, it would seem that no unnecessary delay was chargeable to the payee, especially when it was proved that during the winter following it was impracticable to make a bridge. There was testimony in the case going to show that it was understood that the bridge was to be let out to the lowest bidder, and at a particular time and place.

The instrument, however, is express and explicit that the money is to be paid “ to any person or contractor who may hereafter build the bridge.” Whatever might he the understanding as to employing a contractor or person publicly, or' whatever was done, or attempted to be done, can have no bearing on the merits of the case, since the instrument requires no explanation.

The defendant had the privilege of withdrawing his name before the plaintiff- b^gan the work, but he not only did not do this, but approvingly saw the bridge in process of erection, and since the completion of the bridge has used it as a free bridge.

Had the instrument provided “ that when the requisite amount should be subscribed, a committee was to be appointed, the contract let to the lowest bidder, and that the bridge was to be completed during the fall of 1857,” a different case would have been presented; but such is not the -tenor of the instrument, and parol evidence cannot be received to vary or contradict it, especially after the completion of the work, and to the detriment and in violation of the rights of the bridge builder. The instrument might properly be regarded as a standing offer, to be accepted by any one.

The subscribers needed the bridge just as much in 1858, or any subsequent year, as in 1857 ; and they therefore provided no definite time for the completion' of the bridge, and the time for the payment of the money was when the bridge was completed. The proceedings in the district court in this ease furnish not only good reasons for parties to make their contracts in writing, hut the propriety of the law excluding testimony to vary or contradict a written contract.

The judgment is reversed, and judgment rendered in favor of plaintiff and appellant for the sum subscribed, and costs-in all the courts. ■ From the record in this case we are led to infer that there were two other subscribers to the building of the bridge, and it seems that the three suits were by agreement blended, with the understanding that whatever judgment should be entered in the case against McCrimmin should also apply in the case wherein Levi Needford subscribed five dollars, and Abraham Myers five dollars.

The same principles of law that apply in the ease against MeCrimmin apply in the other cases, and the district court will enter such judgments in the other cases as may be required !by the subscriptions. Reyersed and rendered.