Coryell County v. Burke & Corbett

• Decision Date: 26 January 1928
• Docket Number: (No. 618.)
• Citation: 4 S.W.2d 283
• Parties: CORYELL COUNTY v. BURKE & CORBETT et al.
• Court: Texas Court of Appeals

4 S.W.2d 283

CORYELL COUNTY v. BURKE & CORBETT et al.

(No. 618.)

Court of Civil Appeals of Texas. Waco.

January 26, 1928.

Rehearing Denied March 1, 1928.

Appeal from District Court, Coryell County; Joe H. Eidson, Judge.

Suit by Burke & Corbett against Coryell County, in which a number of persons intervened seeking judgment against Burke & Corbett. From the judgment, defendant county appeals. Affirmed.

T. R. Mears, of Gatesville, and Sleeper, Boynton & Kendall, of Waco, for appellant.

McClellan & Cross, of Gatesville, for appellees.

STANFORD, J.

Suit by appellees Burke & Corbett against appellant to recover compensation alleged to be due them for labor and material furnished in the construction of highway No. 93. A number of parties intervened, seeking recovery against Burke & Corbett for labor and material furnished in the said construction. On a trial before the court without a jury, the court rendered judgment in favor of various interveners against Burke & Corbett for labor and material furnished, and also in favor of Burke & Corbett against Coryell county for $12,412.41, and directed that said amount be paid to the clerk of said court, and that out of said amount said clerk first pay the amounts awarded said interveners, and that the remainder, if any, be paid to Burke & Corbett. Appellant alone has appealed, and presents the record here for review. A more complete statement will be made in connection with our disposition of appellant's assignments.

Under numerous assignments, appellant contends, in effect, that appellees Burke & Corbett had no contract with appellant to furnish the material and do said road work, but that, if there was such contract, the same was void, because: (1) Said employment was not on competitive bid; (2) said work involved the expenditure of more than $2,000, and no bond was required of appellees; (3) the commissioners' court had no authority to make said contract by its county judge and one of its commissioners, and said contract so made, being void, could not be validated by a ratification by said court, etc. The record discloses that state highway No. 93, which had been taken over by the state, extended from the public square in the city of Gatesville, along Main street of said city to the corporate limits, then on to the State Juvenile Training School, a total distance of about three miles. There was a good deal of negotiation by the county, the city of Gatesville, and the training school, each acting by its representatives, in an effort to have said road improved. The county commissioners were interested, in that they were interested in good roads in the county generally, but the county had no county funds to so use, but it was the only party in position to secure state aid. The city was interested, in that one of its principal streets would thereby be improved. The training school, and likewise the state, was interested, in that a good road would thereby be furnished from the city out to said state institution. The parties finally agreed, in substance, that, if the county, through its commissioners' court, would secure state aid to the extent of 50 per cent. of the cost, and undertake to make said improvement, the training school would furnish the county all of the teams and tools necessary, and all the common labor, etc., and the city of Gatesville on its part agreed to furnish $6,000 to be paid to the county when said improvement was completed. So, with the above understanding the county, through its commissioners' court, had plans and specifications of said proposed improvement made by Henry C. Porter, division engineer, giving a detailed statement and estimated cost of the work, totaling $41,250, and attached same to its application to the highway department for aid in doing said work, the allotment asked being $20,625, and in said application was included a resolution by the commissioners' court appropriating to said improvement labor, teams, and equipment of the State Juvenile Training School to the amount of $20,625. The division engineer, on March 18, 1925, made a report on the above application to the acting state highway engineer. Among other things, this report states, in effect, that the county has no cash funds for this work, but proposes to furnish all common labor, teams, and tools furnished to the county by the State Juvenile Training School, amounting to 50 per cent. or more of the cost of said construction. This report states further:

"Coryell county proposes to advertise this work for bids the same as any other project, and the county submit a bid in due form, with unit prices conforming with the prevailing prices for this class of work in this section of the state. If any contractor bids on the work, the court intends to advise that the county has no funds with which to do this work, but has the common labor and teams, and that, if the work is done, the county will have to bid the work in."

By letter, the highway commission notified the county judge of Coryell county that it had apportioned $20,626 state aid to Coryell county on state highway No. 93 from Gatesville to the State Juvenile Training School, said aid not to exceed 50 per cent. of the actual cost of construction; said letter reciting further:

"It will be necessary for the county to have plans prepared for this project. * * * After the plans have been prepared and approved by the department, the county will have to bid in the work."

The county had the plans and specifications for the work prepared by the county engineer, giving an itemized statement of the entire work, and the cost or price per item, making a total for the entire improvement of $32,945.55, which was duly approved by the highway department by its state highway engineer; after which Coryell county, acting by its commissioners' court, submitted a proposal, with a copy of said itemized statement of the improvement totaling $32,945.55 and plans and specifications attached, to the highway commission, to provide all the machinery, tools, do all the work, and furnish all the materials called for in the contract and specifications and to construct said improvement according to the requirements of the engineer as set forth in said plans and specifications and itemized statement, and for the amount therein stated. This proposal states:

"It is understood that the county has no specific funds for this job; but is depending on labor, teams, and tools of the State Juvenile Training School, as per original application for aid. * * * The undersigned agrees and pledges itself to complete the work in full by January 1, 1926. * * * Work to be done to the entire satisfaction of the state highway engineer."

This proposal was signed by Coryell county, by L. M. Stinnett, county judge; W. B. Jones, T. H. Key, N. E. Jaroe, and B. L. Morrison, county commissioners. This proposal was accepted by the state highway department, and, on June 15, 1925, a formal written contract was entered into between Coryell county, represented by the then members of the commissioners' court of said county, party of the first part, and Coryell county, represented by the then members of the commissioners' court of said county and their successors in office, party of the second part, subject to the approval of the state highway commission, by the terms of which Coryell county, represented by the then members of the commissioners' court and their successors in office, party of the second part, contracted with Coryell county, represented by the then members of the commissioners' court, party of the first part, "that for and in consideration of the prices and agreement mentioned in the proposal hereto attached and made a part of this contract, the party of the second part agrees to do at its own proper cost and expense all the work, and to furnish all the material, necessary for the improvement of road No. 93 * * * in accordance with the original application for aid, * * * and in accordance with the * * * specifications, proposal, and plans aforesaid, which are made part of this contract, and in full compliance with all of the terms of the specifications and the requirements of the engineer." The second party further agreed to begin the work as soon as authorized by the state highway department, and to complete same not later than January 1, 1926. The party of the first part, in consideration of the full performance of the work by said second party, obligated itself to pay to the second party the prices set forth in the attached proposal, and in the manner provided in the specifications aforesaid. This contract is duly executed by the parties of the first and second part, and recommended for approval June 15, 1925, by the division engineer, and approved by the state highway engineer on June 16, 1925.

Coryell county did some grubbing and clearing of the right of way for said highway No. 93, and, on July 12, 1926, obtained from the state highway department an extension of the time for the completion of said work; and on the same date, July 12, 1926, said county entered into a contract assigning its contract to W. E. Burke, but the state highway department failed to approve this contract. On December 17, 1926, the commissioners' court of Coryell county adopted by resolution a schedule of prices to be paid for all classes of labor to be performed on said work, the rentals to be paid for various kinds of machinery, tools, wagons, trucks, graders, etc., every phase of said work being covered by said schedule, which was approved by the resident engineer and the highway department by the state highway engineer. On or about July 13, 1926, the commissioners' court adopted a resolution reciting the fact that the highway department had failed to approve the subcontract with W. E. Burke, and to secure such approval would cause further delay, and, as the highway engineer on July 13, 1926, had approved the extension of the county's contract to construct said road to ...