Eastland County v. Davisson

• Decision Date: 27 May 1925
• Docket Number: (No. 98.)
• Citation: 277 S.W. 779
• Parties: EASTLAND COUNTY v. DAVISSON et al.
• Court: Texas Court of Appeals

277 S.W. 779

EASTLAND COUNTY v. DAVISSON et al.

(No. 98.)

Court of Civil Appeals of Texas. Eastland.

May 27, 1925.

Rehearing Denied December 11, 1925.

Appeal from District Court, Eastland County; George L. Davenport, Judge.

Suit for injunction by G. A. Davisson and others against Eastland County. From a judgment granting injunction, defendant appeals. Reversed, and injunction dissolved.

Turner, Seaberry & Springer, of Eastland, and Chandler & Pannill, of Stephenville, for appellant.

Conner & McRae, of Eastland, for appellees.

LITTLER, J.

The appellant, Eastland county, has appealed from an order granting an injunction at the instance of G. A. Davisson, restraining said county and its commissioners' court from expending any part of the money now in its hands or hereafter coming into its hands from funds arising from the sale of certain road bonds theretofore issued from the sale by said county. The injunction suit is ancillary to a suit filed by Eastland county against G. A. Davisson as sole owner of the Fleming-Stitzer Road Building Company, in which it is alleged that Eastland county made and entered into a contract with Fleming-Stitzer Road Building Company, a partnership composed of G. A. Davisson and certain other parties, in which said company had agreed to buy and pay for at par value and accrued interest $4,500,000 bonds voted by the citizens of Eastland county. In addition thereto, said contracting company agreed to build a system of good roads in Eastland county and receive in payment thereof the funds derived from the sale of said bonds. It was further alleged that said company and its successors had taken said bonds, but had not paid for same, and that there was a balance due thereon, a sum in excess of $64,000. The road building company replied, alleging that as said bonds were sold the proceeds were placed in a depository bank which was the regular depository of said county; that said bank had failed, and as a result thereof a large portion of the funds so derived were unavailable for road work; that said county, acting through its commissioners' court, who were the predecessors in office of appellants, had made and entered an order postponing the payment of said sum of $64,000 until such time as said funds became available, and for that reason appellant was not entitled to recover. In addition, said company filed a cross-action praying for a large sum of money alleged to be due it by reason of wrongful classification of work done and material furnished.

While said suit was pending on the docket of the trial court, the road building company filed its petition praying for a temporary injunction, in which it was alleged that said company was entitled to spend the entire proceeds realized from the sale of said bonds, that, since the failure of said depository bank, Eastland county had recovered a portion of said funds and were about to expend said funds upon the roads of said county by other contractors, and that thereby the subject-matter of said original suit would be dissipated. The court granted a temporary injunction without notice to appellant. Thereafter appellant filed its motion to dissolve, denying under oath that any equity existed in appellees' bill, pleaded that said contract for road work had been terminated by and with the consent of appellees' successor, to whom appellees had sold said contract and had repurchased it, that said repurchase was not binding upon said county, since it had not agreed to the reassignment to said Davisson, and further that said contract had attached to it and forming a part of it certain plans and specifications which denied said company the relief sought. The court, after hearing testimony on appellant's motion to dissolve, denied the motion.

By the first assignment of error it is contended that the court erred in not dissolving said injunction, for the reason that appellee based his right to injunctive relief upon a certain contract which he attached to his petition, but which appellant contends is incomplete, in that said contract provided that there are certain plans and specifications prepared by the county engineer of Eastland county, attached to said contract and made a part thereof; that the contract attached to said petition did not contain a copy of the plans and specifications, nor were there any allegations in appellees' petition denying the existence of other provisions in said specifications which would be sufficient to deny appellees the relief sought. We think this assignment is well taken. We think it was necessary for appellees to either plead the entire contract between the parties or else allege such portions thereof as he bases his right to an injunction upon, and plead and prove that there are no other provisions contained in the contract which would deny him the relief prayed for. In other words, in suits for injunction, it is necessary, not only to allege facts entitling one to the relief sought, but he must negative every other fact by which the relief sought could be denied.

The Supreme Court, in the case of Gillis v. Rosenheimer, 64 Tex. 243, quoted with approval the rule in this language:

"The rule of pleading, that the statements of a party are to be taken most strongly against himself, is reinforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief."

This question was directly decided and the rule applied to similar facts in the case of Chas. F. Noble Oil & Gas Co. v. American Refining Co. (Tex. Civ. App.) 248 S. W. 451. The applicant for injunction only pleaded a portion of the contract between the parties, and the court held that it was necessary to plead the entire contract, citing with approval the rule above quoted. Many other decisions substantially to the same effect might be cited, such as Emde et ux. v. Johnson et al. (Tex. Civ. App.) 214 S. W. 575; Birchfield v. Bourland (Tex. Civ. App.) 187 S. W. 422; Collins v. Citizens' State Bank (Tex. Civ. App.) 241 S. W. 633.

We likewise think the court erred in refusing to admit in evidence the plans and...