Flanders v. Wood , 83 Tex. 277 ( 1892 )

The first assignment of error is, that the court erred in holding that there was not a misjoinder of parties plaintiff. The question was raised in the court below by exceptions to the petition. There was no error. In a suit to enforce a contract all persons interested therein are proper parties. It would be a singular proceeding to require each of the plaintiffs to bring separate suits against the same defendant, on the same promise, subject to the same defenses. This suit was by two partners to compel a third to account in the same amount to each. We know of no authority that requires separate suits in such a case. Creditors holding separate claims against a debtor can not join as plaintiffs in the collection of their debts (Blum v. Goldman Son, 66 Tex. 622); but that rule does not apply to this case. Appellant contends that the contract was without consideration, and therefore can not be enforced. In reply to this, it need only be said that the promises were mutual and simultaneous, and bound all the parties. Such promises constitute a valuable consideration. Bish. on Con., sec. 76; James v. Fulcrod, 5 Tex. 512.

It is also claimed by appellant that the contract sued on is void because contrary to public policy, in that its effect was to defeat fair and open competition upon the plans and specifications submitted by the parties to the Commissioners Court of Wilbarger County for the building of a court house; and it is also claimed that the court erred in rendering judgment for plaintiffs, as the evidence showed that the intention of the parties in making the contract was to prevent such competition.

There is no doubt as to the law, that if the contract was made to prevent rivalry between the parties in their bids for furnishing plans and specifications for the court house it would be void as against public policy. Atchison v. Mallon, 43 N.Y. 148; James v. Fulcrod, 5 Tex. 513; Allen v. Stephanes,18 Tex. 658. The question, however, in this case is, Did the contract have the effect or was it the intention thereby to stifle competition as claimed? The contract shows that each of the three parties thereto had put in plans and specifications for the court house, to be accepted or rejected by the County Commissioners Court; that there was competition between the plans offered; that it was unknown whose plans would be accepted; that they would all retire from further contest in order to attend to their more urgent business, and let the plans alone compete, and that whichever of the plans should be accepted, all should share equally in the remuneration. The bids or price of plans was not to be changed, nor was any one to be withdrawn.

It is contended that the provision in the agreement that the parties should retire from further contest indicates the illegality of the contract. It does not appear how such an agreement could affect the county whose officers had at the time the offers of the architects before them, which the agreement in nowise interfered with. The competition was between the plans themselves; the agreement was not to withdraw any of them, but to leave them in competition as they were. The county was not to be injured or put at any disadvantage. The architects alone were affected. The withdrawal of their advocacy of their respective plans is all that could have been contemplated — not the plans or any of them. This was not illegal. The county was not to be deprived of its selection or of any right. The plans were still in competition. The result of the free and untrammeled selection of the county was made the basis of the agreement; the freedom of the county in selecting was not interfered with nor limited. The evidence shows that the commissioners made their selection from the plans of these and other architects who had submitted other plans and specifications, preferring those of defendant among them all. There is nothing in the evidence to show that the competition was in the least influenced by the agreement. This case is similar to that of Briggs v. Tillotson, 8 Johnson, 304, where a premium was offered for the best manufacture of cloth. There were several competitors, who, after the cloth was made and submitted, agreed to share the bounty. It was held that the agreement did not affect the competition. In another case the principle is contrasted. The collection of town taxes was to be let to the person making the most favorable proposition to the town; two competitors agreed at the time they put in their bids to divide the profits. It was held that the contract was against public policy, as it must have influenced the bids. Atchison v. Mallon, 43 N.Y. 147. This is sound law. The distinction is well made in the two cases, and it is at once seen that the case at bar comes under the former and not the latter. James v. Fulcrod, 5 Tex. 513.

We find no error, and conclude that the judgment of the lower court should be affirmed.

Affirmed.

Adopted February 9, 1892.