City of Longview v. Capps

• Decision Date: 11 November 1909
• Parties: CITY OF LONGVIEW v. CAPPS et al.
• Court: Texas Court of Appeals

123 S.W. 160

CITY OF LONGVIEW v. CAPPS et al.

Court of Civil Appeals of Texas.

November 11, 1909.

Rehearing Denied December 2, 1909.

Appeal from Gregg County Court; J. H. McHaney, Judge.

Action by Mrs. F. M. Capps and another against the City of Longview. Plaintiffs had judgment, and defendant appeals. Affirmed.

Appellees based the suit on a contract to pay them $150 which they claimed to have been made with them by the city through its mayor, who had express authority from the city to make such contract. Appellant, in answer, claimed that the contract was unauthorized by it, and that the mayor had no authority or power to make such contract, and failure of consideration.

It appears from the record that on February 11, 1908, the city council of the city of Longview regularly adopted and entered of record in its minute book of proceedings the following: "On motion of Alderman Morgan, seconded by Alderman Sessum, the matter of the roadway known as the Tyler road in northwest part of the city being stopped up by Mr. Capps be placed in the hands of the mayor for adjustment." This resolution on the part of the city council was prompted by a controversy or dispute then existing between appellees and the city over the right of the city to the use of the roadway mentioned. Capps was contending that his wife by her deed owned the fee to the center of the roadway, which formerly, before the creation of the municipality, was a public road, and that there had been an abandonment on the part of the city of the old road as a roadway of the city. He fenced the road in part. The city was claiming that the old road was a street of the city, platted by it on the map as such, and that there had been no abandonment by it or the public. Acting under the authority of the resolution, the mayor "spoke to Judge Campbell and told him to see Mr. Capps and adjust the matter," and at the same time telling him to offer appellees a specified sum of money in settlement of the dispute pending. Judge Campbell saw appellees and made the offer specified by the mayor to them, and it was accepted, and appellees executed their deed to the city reciting the consideration specified. The consideration specified and accepted by appellees was in full of all claims made by them to the roadway. The appellees delivered the deed so executed by them to Judge Campbell for delivery to the city by him. The mayor being out of the city at the time, Judge Campbell handed the deed to an alderman of the city. At a regular session of the city council, the deed was presented and read to the city council, who refused to accept the same and refused to pay the appellees' claim. The mayor adopted the settlement made with appellees by Judge Campbell, and testifies: "I did not see Mr. Capps personally, but had Judge Campbell to see him. The adjustment of the matter made by Judge Campbell would have been, and was, satisfactory to me." The evidence shows that the obstruction in the roadway has been removed, and that the city has taken possession of the roadway, and is now using it for a street, and that the appellees are not making any claim in the record to the roadway.

M. L. Cunningham, for appellant. F. B. Martin, for appellees.

LEVY, J. (after stating the facts as above).

It is contended by appellant, in proper assignments of error, that the evidence established that the contract sued upon was not authorized by the city council, and that the mayor had no authority or power to make such contract for the city, and that the appellees are not entitled to recover. We think it should be held that appellees' suit is for a moneyed judgment upon an alleged agreement to pay the sum sued for, and not a suit for specific performance of a contract of sale of land. If therefore the authority conferred on the mayor to act as agent for the city by the resolution (which it is) passed by the city council, should properly be construed to extend to and include the power to offer and agree to pay to appellee a specified sum, and we think it should be so construed, as a consideration to put an end to the matters and differences in dispute about the roadway between the appellees and the city, as appears from the evidence was done, then the contract to pay as sued upon would be, we think, within the authority of the agent and binding on the city, and not subject to...