City of San Antonio v. San Antonio St. Ry. Co.

• Decision Date: 15 November 1899
• Parties: CITY OF SAN ANTONIO v. SAN ANTONIO ST. RY. CO.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

54 S.W. 281

CITY OF SAN ANTONIO v. SAN ANTONIO ST. RY. CO.¹

Court of Civil Appeals of Texas.

November 15, 1899.

Error from district court, Bexar county; Robert B. Green, Judge.

Action by the city of San Antonio against the San Antonio Street-Railway Company. From a judgment for defendant, plaintiff brings error. Affirmed.

Geo. C. Altgelt and R. B. Minor, for plaintiff in error. Houston Bros., for defendant in error.

JAMES, C. J.

This suit was brought by the city to recover of defendant, the San Antonio Street-Railway Company, the city taxes for the years 1893, 1894, 1895, and 1896, and to foreclose a lien therefor. The answer was a plea of payment, setting forth, in substance, that on May 8, 1896, after the suit was brought, defendant paid said taxes, amounting, with interest, to $9,940.76, and on or about May 13, 1896, paid all costs of this suit then incurred, including costs of a final judgment in the case; that notwithstanding this the city attorney filed amended pleadings herein, incurring thereby additional costs, and refused and still refuses to permit the cause to be dismissed. On April 22, 1897, an amended petition was filed on behalf of the city by the city attorney, which set up various matters not necessary to state in detail, concluding with a prayer for the entire amount of the taxes, and for foreclosure of a tax lien upon property of defendant. To this defendant filed a second amended answer, alleging, in substance, what was in the original answer; and on May 9, 1898, defendant filed a supplemental answer, stating "that this case was settled at the time of the payment as alleged in defendant's second amended answer filed herein November 22, 1897; that said payment was duly authorized by the city of San Antonio, acting through its duly-authorized officers and the council of said city; that the check by which the payment was made was collected by the collector of said city in full, and was paid by the bank on which it was drawn in money satisfactory to the city of San Antonio and its collector, and said payment was accepted and received by said city and said collector in full satisfaction and settlement of all demands in this suit involved; that defendant has found since the filing of amended answer, and will use in evidence, the original tax receipts given for said taxes, and the city received the benefits of said payment." Exceptions were filed to the above supplemental answer on various grounds. In reference to these exceptions, we need only say that this answer does not show that the payment claimed to have been made was in anything but money, nor does it appear from the pleading that it was not in legal-tender money. Hence the exceptions were properly overruled.

The merits of this case depend upon the facts. Briefly stated, they show that defendant was sued for the taxes alleged, and owed them. Pending the suit a compromise was, after certain negotiations, arranged between the defendant and the mayor and finance committee of the city, the result of which was embodied in a letter addressed by the mayor to defendant's president, and the latter's reply, as follows:

"San Antonio, Texas, May 8th, 1896. San Antonio Street-Railway Company, W. H. Weiss, President, City—Dear Sir: As a result of the negotiations conducted by yourself on behalf of your company, and through the finance committee on behalf of the city of San Antonio, for the purpose of reaching a settlement of the claims your company has against said city, and those said city has against your company, and acting on the recommendation made by said committee, I submit the following proposition on behalf of the city:

                1st. You are to pay to the city of
                  San Antonio the taxes, and all accrued
                  interest to date, at the rate
                  of 8 per cent. per annum, owing by
                  your company to the city, the same
                  being for the tax year of '92-'93
                  '93-'94, '94-'95, and '95-'96
                  amounting in all to ..................... $ 9,940 76
                2nd. You are to pay to the city the
                  amount found to be due it as per
                  experts' report, dated March 1st
                  1893 ....................................   4,306 85
                                                            ==========
                3rd. The city will refund to you on
                  account of payment made to it by
                  you for paving on Houston street ........ $ 8,029 90
                On account of payment made to it
                  by you for flooring on Houston
                  Street Bridge ...........................     355 00
                On account of payment to it by you
                  for paving on Soledad street ............     509 00
                On account of macadamizing and
                  damage done to you on Aransas
                  street ..................................   1,579 80
                                                            __________
                                                            $10,473 70
                Less an agreed deduction from said
                  allowance of ............................   2,643 99
                                                            __________
                  Leaving a balance of .................... $ 7,829 71
                

"4th. The said city of San Antonio agrees to dismiss, at your cost, certain suits pending against your company in the 37th judicial district court of Bexar county, Texas, wherein the said city is plaintiff and your company is defendant (Nos. 6,485 and 7,265); and your company agrees to dismiss, at its own cost, a certain suit pending in the 45th judicial district court of Bexar county (No. 3,411), wherein your company is plaintiff and the said city is defendant.

"5th. It is understood and agreed that the said sum of $4,306.85, being the balance as shown to be owing by your company to the said city according to the experts' report of March 1st, 1893, and the taxes as above set forth, constitute all the claims the said city has against your company to this date, and that the said sum of $7,829.71, as shown to be due and allowed to your company, as above detailed, shall and does constitute all the claims your company has against the said city to this date, except such as may be involved in suits Nos. 7,249 and 7,400, pending in the 37th judicial district court of Bexar county, wherein your company is plaintiff and the city of San Antonio is defendant; said suit growing out of the construction of sewers in the city of San Antonio by said city.

                "In duplicate
                    "Very respectfully
                            "Henry Elmendorf, Mayor."
                

Said letter being indorsed as follows:

"The above and foregoing proposition is hereby accepted, and in pursuance thereof we have this day paid to Henry Umscheid, Esq., collector of the city of San Antonio, $9,940.76, and have received from the said city a warrant for $3,522.86.

                    "San Antonio Street-Railway Company,
                         "By W. H. Weiss, President."
                

This was on the 8th day of May, 1896, upon which day the mayor issued the railway company a warrant in regular form on the city treasurer for $3,522.86. This warrant was not presented by defendant to the treasurer, but, instead, the...