Ault v. Hill County

• Decision Date: 23 May 1908
• Citation: 111 S.W. 425
• Parties: AULT v. HILL COUNTY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

111 S.W. 425

AULT v. HILL COUNTY.^*

Court of Civil Appeals of Texas.

May 23, 1908.

On Rehearing, June 13, 1908.

Appeal from District Court, Hill County; W. C. Wear, Judge.

Action by T. H. Ault against Hill County. Judgment for defendant, and plaintiff appeals. Affirmed.

R. M. Vaughan, for appellant. Morrow & Smithdeal, for appellee.

TALBOT, J.

T. H. Ault brought this suit against Hill county to recover the sum of $1,758.50, as damages alleged to have been sustained on account of the refusal of the commissioners' court of said county to allow him to execute, according to its terms, a contract, which he had entered into with said county for the construction of certain improvements upon its courthouse. The case went to trial, and, after all the evidence was in, the court instructed the jury to return a verdict for the defendant. The plaintiff filed a motion for a new trial, which being overruled, he perfected an appeal to this court.

The material facts are as follows: On November 24, 1906, the commissioners' court of Hill county was composed of N. J. Smith, county judge, and R. J. Roy, W. R. Robinson, T. S. Bolt, and W. T. Osley, commissioners. At the November election of 1906 the said N. J. Smith was re-elected county judge of said county, and four new commissioners were elected in lieu of those above mentioned. On the 24th day of November, 1906, before the commissioners named retired from office, they and the said N. J. Smith accepted a bid of appellant Ault to make certain changes and improvements desired, on appellee's courthouse, and signed with appellant the written contract therefor, as alleged in said Ault's petition. By the terms of this contract Ault agreed to furnish all the material, and to make certain changes in and improvements upon Hill county's courthouse according to the plans and specifications furnished him, for which the county agreed to pay him the sum of $4,378. The specifications, which were made a part of the contract, contained the following provisions: "Each and every bid must be accompanied with a certified check for the sum of one hundred dollars payable to N. J. Smith, county judge, as a guarantee of good faith, said check to be forfeited as liquidated damages if successful bidder fails to enter into contract with solvent bond in the sum of $1,000 within five days after acceptance of bid." No record of this contract was made in the minutes of the commissioners' court; but, at the time it was signed, said court was in regular session, and it was understood and contemplated that such record would be made. Immediately after the contract with appellant was signed, the execution of the $1,000 bond was discussed by the members of the court, and the preparation of the bond was left to the county judge. Smith, and he was authorized to receive and approve the same. In the discussion of this matter the county judge informed the other members of the commissioners' court that, because of other duties devolving upon him, he would not be able to prepare the bond within the five days, as required by the provision in the specifications. He was then authorized by the members of the court to prepare and approve the bond after the expiration of the five days, and said bond was by him accepted and approved on the 18th day of December, 1906. There was no formal motion made or resolution passed by the commissioners' court authorizing the county judge to approve the bond after the expiration of five days, and no record upon the minutes of the court was made of that action; but there is evidence to the effect that it was intended and expected by the members of the court that such record would be made. The names of the parties who signed the bond with appellant were given when the contract was signed, and it does not appear that any objection was made to the bond on the ground that the proposed sureties were insufficient. At no time did the commissioners court provide any means for the payment of the amount agreed to be paid by the terms of the contract made with appellant, but they intended and expected that it should be paid out of the general fund of the county. After the new commissioners, elected at the November election of 1906, were inducted into office they repudiated the contract made with appellant by their predecessors, and refused to allow appellant to enter upon and perform the said contract, to appellant's damage in the amount sought to be recovered.

Appellant has presented several assignments of error, but in the view we take of the case it becomes unnecessary to state and discuss them. We are of the opinion the judgment of the court below must be affirmed, for the reason that the contract entered into between appellant and the commissioners' court of Hill county created a debt against the county, which, together with the current expenses of the county, exceeded the legitimate current revenue derived from taxation allowed by law to be levied to meet current expenses, and no provision was made to assess and collect a sufficient sum annually to meet the interest thereon, and create the sinking fund, as is required by article 11, § 5, of the Constitution. That such provision must be made under such circumstances,...