Eastland County v. Davisson
| Decision Date | 28 October 1926 |
| Docket Number | (No. 234.)<SMALL><SUP>*</SUP></SMALL> |
| Citation | 290 S.W. 196 |
| Parties | EASTLAND COUNTY v. DAVISSON et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Stephens County; C. O. Hamlin, Judge.
Suit by Eastland County against G. A. Davisson and others. Judgment for defendants, and plaintiff appeals. Affirmed.
See, also, 287 S. W. 901, 277 S. W. 779.
Turner, Seaberry & Springer, of Eastland, Chandler & Chandler, of Stephenville, and Hickman & Bateman, of Breckenridge, for appellant.
Conner & McRae and G. G. Hazel, all of Eastland, Levy & Evans, of Fort Worth, and John T. Suggs, of Denison, for appellees.
We take the following as the nature and result of the suit from the briefs of the parties.
In June, 1919, Fleming-Stitzer Road-Building Company, a copartnership, made a contract with appellant county to construct some roads. The contract was evidenced by two instruments, in writing, found at pages 15 to 34 of the transcript and on page 137 to 154 of the statement of facts. These instruments referred to contain certain engineering specifications as to the roads. Subsequent to the making of the contract, appellee Davisson became the sole owner of the Fleming-Stitzer Road-Building Company.
The contract obligated the contractor to purchase and pay for in cash, at par, plus accrued interest, the bonds issued by appellant and theretofore voted for the purpose of building the roads. It was contemplated that the bonds so purchased would not be held by the contractor, but resold to regular bond brokers in the open market. By the contract appellant was obligated to deliver the bonds to such buyers on the order of the contractor. The contractor sold the bonds and a majority of them were sold at a discount. A regular set of books was opened between the contractor and appellant, and entries made therein reflecting the amount of credits and charges between the parties. Where any bonds were sold by the contractor before he had performed a corresponding amount of work, the proceeds of such were, under the agreement, deposited in the county depository bank and thereafter paid out as the work was done. Every sale of such bonds by the contractor was at a discount. He was accordingly charged on the books of the county with this discount, it representing the difference between what he had agreed to pay the county for the bonds and what he actually sold them for. To offset these charges for discount on bonds, the contractor was from time to time credited with the bills he would turn in each month covering the work done by him, which bills were called estimates. The parties proceeded in this manner until about the 2d day of August, 1921, at which time the county depository bank, The Security State Bank & Trust Company, failed. By this failure, a large amount of the proceeds from the sale of the bonds theretofore sold, in the manner detailed above, became impounded, the exact amount being $426,113.45. Subsequent to said failure, litigation was instituted for the recovery of said funds, and this litigation is still pending. Other bond money was likewise impounded by the failure of the First National Bank of Ranger, Tex., in an amount approximately $20,000, which, by litigation, has since been recovered.
There was some delay in the prosecution of the road work caused by the bank failures, and some litigation against the contractor by some private citizens of the county, but the work progressed at intervals up to the latter part of January or the first part of February, 1922, at which time, with the consent of the county, the contractor assigned his interest in the contract to Smith Bros., another road-building company. Smith Bros., assignees of Davisson, proceeded with the road work under the terms of the original contract up until the 29th day of December, 1922, at which time it was reported to the commissioners' court that the contract had been performed as to all roads except a portion of the Bankhead highway, and a request for settlement for such work was made. Thereupon the commissioners' court passed and entered on its minutes an order accepting said roads as completed, which order is found in the record. Immediately following the entry of this order, the then county judge and three individual members of the commissioners' court were succeeded in office by other officials who had been duly elected to succeed the previous court. Shortly after the new judge and commissioners qualified, an audit of the county books was made.
This suit was originally instituted by appellant against appellee, on the 17th day of December, 1923. The original pleadings have since been amended from time to time up to the filing of plaintiff's second amended original petition. In this pleading plaintiff alleged substantially all the facts above set forth, and alleged further that, as shown by the books of Eastland county, the Fleming-Stitzer Road-Building Company, after allowing credit for all work done, still indebted to said county in the sum of $64,160, covering the discount on bonds delivered, for which, under the contract, it and its sureties, the Southern Surety Company, were obligated to pay.
The plaintiff also alleged matters in reference to an injunction suit growing out of the main case, but same is not material here as the matter is now undisposed of in the Supreme Court.
The appellee Davisson alleged that in January, 1922, he had a final, full, and complete settlement with Eastland county, wherein all matters in controversy in this suit involving the bond discount were settled and adjusted by and between appellant and defendant, and, as evidence of such settlement, pleaded order No. 3 of the commissioners' court of said county, and pleaded same as a complete bar and as res judicata to this suit. Appellee Davisson further pleaded said order No. 37 of the commissioners' court as a bar to the suit, and that by a certain other order, known as order No. 38, by reason of appellee having sold and conveyed with the consent of the county his contract for the construction of roads to Smith Bros., and that, by the entering of said order, appellant was not entitled to recover.
The appellee Gregg alleged that he retired from the partnership of G. A. Davisson, and by reason of facts alleged he was released and that appellant was estopped from any recovery, and he further adopted the answers of his codefendant Davisson, and, by way of cross-action against appellee Davisson, sought recovery for such amount as appellant might recover against him.
The appellee Southern Surety Company pleaded that it was a surety on the bond of the Fleming-Stitzer Road-Building Company, and after general demurrer and general denial pleaded the assignment of the contract and alleged that its liability was transferred to Smith Bros., with the consent of appellant, and pleaded order No. 3 of the commissioners' court as releasing and discharging it from liability on the bond. The cause was tried before a jury upon special issues, and, from the answers of the jury to the special issues submitted, judgment was rendered denying appellant any recovery against appellee. The appellant's motion for a new trial being overruled, notice of appeal was given and same duly prosecuted to this court.
There are 71 assignments of error, but we believe there are a few controlling legal questions which dispose of the appeal and make it unnecessary to discuss all the assignments. This is recognized by the fact that a number of the assignments are grouped under the same proposition of law by the appellant. As we view it and as really treated by appellant, the first three propositions asserted are the main propositions of law involved. The first proposition of error advanced is as follows:
"Parol testimony was not admissible to contradict, vary, or add to the written orders of the commissioners' court, which orders were judgments of a court of record."
This proposition is submitted under 17 assignments of error and we will consider same as grouped, although strongly insisted by appellee that the grouping of the assignments violates the rules of practice in the appellate court. The assignments are so pertinent to the propositions, and so similar in application that we do not believe we do any violence to the rules in so treating same. We are very well aware that parol evidence is not admissible to contradict or vary the written orders and judgments of the commissioners' court, in the absence of allegations of fraud, accident, or mistake. This rule is fixed, understood, and enforced, and so well established there is no reason for debate or dispute of the proposition. Appellee Davisson having pleaded order No. 3 of the commissioners' court as res judicata and in bar of appellant's right to recover, the question is, Was it permissible, under the law, to introduce parol proof that the item of damages sued for was before the commissioners' court at the time of making such settlement and at the time of the passage of said order, and did the offered proof place the appellee in the attitude of contradicting or adding to the order of the commissioners' court?
The said order No. 3 reads as follows:
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Eastland County v. Davisson
...Action by Eastland County against G. A. Davisson and others. A judgment for defendants was affirmed by the Court of Civil Appeals (290 S. W. 196), and plaintiff brings error. Reversed and remanded to the district See, also, 277 S. W. 779; 287 S. W. 901. J. Frank Sparks and Turner, Seaberry ......