Davisson v. Eastland County

• Decision Date: 30 December 1927
• Docket Number: (No. 283.)
• Citation: 6 S.W.2d 782
• Parties: DAVISSON et al. v. EASTLAND COUNTY.
• Court: Texas Court of Appeals

6 S.W.2d 782

DAVISSON et al. v. EASTLAND COUNTY.

(No. 283.)

Court of Civil Appeals of Texas. Eastland.

December 30, 1927.

Rehearing Denied March 2, 1928.

Appeal from District Court, Eastland County; Elzo Been, Judge.

Action by Eastland County against G. A. Davisson and others. From a judgment against defendants Davisson and others, they appeal. Reversed and remanded.

See, also, 298 S. W. 268.

Conner & McRae, of Eastland, and Black & Graves, of Austin, for appellants.

Ed S. Pritchard, of Eastland, W. J. Barnes, of Houston, and J. Frank Sparks, Littler & Jones, and Grisham Bros., all of Eastland, for appellee.

COOMBES, Special Chief Justice.

Eastland county sued and recovered judgment against G. A. Davisson, road contractor, and C. R. Starnes, county judge, jointly and severally, for the sum of $388,575.50, and against Joe Burkett and Sam D. Young, jointly and severally with said C. R. Starnes on his official bond as such county judge, for $5,000, and in favor of Eastland county against all said parties for costs; from which judgment Davisson, Starnes, Burkett, and Young prosecuted this appeal. The judgment also declared void and canceled certain orders of the commissioners' court of Eastland county. Certain members of the commissioners' court and their bondsmen were also sued, but judgment resulted in their favor.

The suit was predicated on certain items paid out by Eastland county for the account of the contractor alleged not to have been taken into account in the settlement between the county and the contractor, and for certain alleged breaches of an original and supplemental contract between the county and the original contractors for the construction of a system of good roads in Eastland county and the purchase by the contractors at par and accrued interest of Eastland county's road bond issue, amounting to $4,320,000, which contract of purchase it was alleged was breached to the extent of the items sued for, and an item of $36,388.40, allowed by the commissioners' court as a credit for "Matters of Bond Sales, Legal, etc." The contracts were dated the 9th and 15th days of June, 1920, and were between the county and the Fleming-Stitzer Road-Building Company, a partnership composed of certain parties and said G. A. Davisson, and which contracts were on July 5, 1921, taken over by Davisson with the consent of the commissioners' court.

The cause was tried by jury, and, on answers to special issues submitted, judgment was rendered as above indicated.

Seasonably and in due form, Davisson filed and presented his pleas in abatement and in bar of plaintiff's suit, which the trial court heard and overruled. The first question presented for review is whether the action of the court in overruling said pleas was error.

It appears from the pleadings and evidence that on the 12th day of December, 1923, Eastland county brought suit in the district court, Ninety-First district, Eastland county, styled Eastland County v. Fleming-Stitzer Road-Building Company, No. 10577, in which G. A. Davisson was the principal defendant and made primarily liable and all other parties sued were made secondarily liable therein, which, on motion for change of venue, was transferred to the district court of Stephens county, Nintieth district, and was thereafter tried in said latter court on the 9th day of January, 1926, resulting in a judgment for defendants, and plaintiff appealed, said trial being had upon plaintiff's second amended original petition, filed January 22, 1925. The present suit was filed April 17, 1925, in the Eighty-Eighth district court of Eastland county, and went to trial on plaintiff's first amended original petition filed May 7, 1926. The trial began on May 10, 1926, on the plea in abatement, and the jury returned its verdict on the merits on the 28th day of May, 1926, and the judgment itself was rendered on the 4th day of June, 1926, in favor of plaintiff for an aggregate total of $388,575.50 against G. A. Davisson and C. R. Starnes, jointly and severally, and against Joe Burkett and Sam D. Young, sureties on the official bond of C. R. Starnes for $5,000.

In both suits it is alleged that plaintiff on the 9th and 15th days of June, 1920, entered into an original and supplemental contract with Fleming-Stitzer Road-Building Company, by which the latter agreed to buy and pay for in cash, at par and accrued interest, $4,200,000 of Eastland county's road bonds, and to construct a system of public roads in Eastland county, according to the terms of said contract and certain plans and specifications on file with the county engineer of Eastland county.

In each suit it was alleged that defendants breached said contract and failed to pay par and accrued interest for said bonds.

In the former suit it was alleged, in the original petition, defendants had failed to pay Eastland county in full for said bonds to the extent of $64,100, and had failed to the extent of $36,388.49 to pay par for 495 of said road bonds of the par value of $1,000 each, and further sought to recover $11,500 alleged to have been paid the contractors for railroad siding, when none had been built. By its second amended original petition, on which it went to trial, all of the items were eliminated except the item of $64,100.

In the present suit recovery was had for the same item of $36,388.49, sought to be recovered by the original petition in the former suit. In the instant suit different elements or items of damages are alleged, but these are recoverable, if recoverable, because some provision of said contract, alleged in both suits to be one complete contract, was breached. Three of the items recovered in the instant case, one for $13,049.50, one for $14,000, and one for $36,388.49, involved the alleged failure of Eastland county to receive credit for said items in the settlement of the contractors' account with resulting breach in each instance of the contractors' obligation to pay full value for the bonds which he agreed to purchase. The other items of damage complained of in the instant case concerned the alleged failure of the contractor to perform the obligations of said contract in respect to the manner of constructing the roads in question and the character of material to be used and work to be done. The action of the court in overruling said pleas in abatement and in bar is assailed by various assignments of error and propositions laid thereunder, setting up the contention that all the elements of damage pleaded in the two suits accrued as the result of the breach of the same contract, and accrued prior to the filing of the former suit, and that all of said elements of damage constituted a single cause of action which appellee was not entitled to split and prosecute separately by separate suits, and this contention was pleaded in bar as well as in abatement of the instant suit, and that the court erred in rendering judgment awarding any recovery to Eastland county in the instant suit.

In the instant suit it is alleged:

"That on the 9th and 15th days of June, 1920, plaintiff entered into an original contract and a supplemental contract, constituting one whole contract with Fleming-Stitzer Road-Building Company, a partnership composed of W. R. Fleming, Frank E. Stitzer, Saunders Gregg, and G. A. Davisson, whereby the said Road-Building Company agreed to construct a system of roads or public highways for Eastland county, and to purchase plaintiff's bond issue and pay therefor the par of said bonds amounting in the principal sum of about $4,320,000."

In appellee's petition on which trial was had in the district court of Stephens county, the terms of the original contract dated June 9, 1920, between Eastland county and Fleming-Stitzer Road-Building Company, a copartnership composed of G. A. Davisson, Saunders Gregg, W. R. Fleming, and Frank E. Stitzer, was alleged to be "to construct a system of public roads in Eastland county" and "to accept for all work and material performed and furnished in the construction of said roads the bonds which Eastland county had been authorized to issue in payment therefor, Eastland county to receive the full par value of said bonds, together with all accrued interest thereon." The terms of the supplemental contract of date June 15, 1920, were alleged therein to be "to buy and pay for in cash, at par value and accrued interest the $4,320,000 of good road bonds which Eastland county was authorized to issue for road construction." It was then alleged:

"That said original contract and supplemental contract, hereinbefore referred to as Exhibits A and B, respectively, constitute one complete agreement between said parties with reference to the construction of a system of good roads in Eastland county, Tex."

A careful reading of the contracts in question, we think, sustains the interpretation placed thereon by the appellee that there was, in fact, but one contract between the parties. In other words, it was the intention of the parties that the aggregate of all the road improvement work as called for in said contract be done and performed by the contractor, that the contractor would be paid for the work so done as provided in the contract, that the contractor would buy and pay Eastland county par and accrued interest for Eastland county's road bonds in the manner therein set out, and that full and complete performance by both parties of the entire contract was contemplated.

In both the former and instant suit, recovery was sought for the value of the Eastland county bonds alleged to have been delivered to the appellant Davisson, in a purported settlement for sums due by Eastland county under the contract, and for which, in each instance it was alleged that Eastland county did not receive full value. Failure on the part of Davisson to pay par value and accrued interest for the Eastland county road bonds according to his contract was attributable to the matters set up in the Stephens county suit and the...