Edwards v. Lubbock County

• Decision Date: 03 December 1930
• Docket Number: No. 3498.,3498.
• Citation: 33 S.W.2d 482
• Parties: EDWARDS v. LUBBOCK COUNTY.
• Court: Texas Court of Appeals

33 S.W.2d 482

EDWARDS v. LUBBOCK COUNTY.

No. 3498.

Court of Civil Appeals of Texas. Amarillo.

December 3, 1930.

Appeal from Lubbock County Court; Geo. S. Berry, Special Judge.

Action by B. J. Edwards against Lubbock County. Judgment for defendant, and plaintiff appeals.

Reversed and rendered.

Levens, McWhorter & Howard, of Lubbock, for appellant.

Vaughn E. Wilson, of Lubbock, for appellee.

JACKSON, J.

The plaintiff, B. J. Edwards, instituted this suit in the county court of Lubbock county, Tex., against the defendant, Lubbock county, to recover the sum of $400 for services alleged to have been rendered by the plaintiff to the defendant.

Plaintiff, after the averments as to parties, for cause of action alleged: That the defendant was the owner of certain land fully described, which it desired to sell. That the commissioners' court of the defendant county was unwilling to appoint a commissioner, advertise the land, and offer it for sale at public auction, unless some person was first found who was ready, willing, and able to bid and would in good faith agree to bid the sum of $8,000 for said land if it were offered for sale at public auction. That the defendant, acting by and through its commissioners' court, entered into a contract with the plaintiff by the terms of which the defendant agreed to pay plaintiff 5 per cent. commission on $8,000, or $400, if he would procure a bidder ready, willing, and able to bid and who would in good faith bid as much as $8,000 for said land when advertised and sold by a duly appointed commissioner.

That in pursuance to such contract, the plaintiff procured J. W. Kerley as such bidder who entered into a valid, written contract with the commissioners' court by which he was bound to bid the sum of $8,000 for said land at the sale if the commissioners' court would appoint a commissioner to sell and dispose of the land at public auction. That J. W. Kerley, the bidder procured by plaintiff, as an evidence of good faith and his ability to perform his contract, deposited $8,000 with the treasurer of Lubbock county. That in the contract between plaintiff's purchaser and the defendant, it was further agreed that in the event the defendant should obtain a higher bid than $8,000 when the land was offered for sale at public auction, that such higher bid could be accepted and the defendant be under no obligation to J. W. Kerley by virtue of said contract, save and except to return to him his $8,000.

Plaintiff alleges that he performed all the stipulations and conditions of his contract with the defendant, and when his prospective purchaser, J. W. Kerley, entered into the contract and deposited his $8,000 with the defendant, the plaintiff's services were completed and he was entitled to his commission.

A copy of the contract between the defendant and J. W. Kerley is attached to plaintiff's petition.

In the alternative, the plaintiff alleged that if he were mistaken as to the making of an express contract between himself and the defendant, nevertheless he is entitled to recover for his services on a quantum meruit; the facts upon which he relied to so recover being sufficiently pleaded.

The defendant answered by general demurrer, special exceptions, and general and special denials. It also alleged that after the contract between the defendant and J. W. Kerley the land was offered for sale at public auction and Lloyd Doughty bid at said sale the sum of $8,500, to whom the land was sold and conveyed.

That the commissioners' court had no legal authority to make the alleged contract with the plaintiff, who had notice of the terms, limitations, and conditions upon defendant's right to sell said land, and he is thereby estopped to recover for his alleged services.

The case was tried before the court without the intervention of a jury and judgment rendered that the defendant go hence without day and plaintiff take nothing by his suit, from which judgment this appeal is prosecuted.

The court filed findings of fact and conclusions of law which are, in substance: That the county owned the land described in plaintiff's petition, which the commissioners' court desired to sell, but were unwilling to appoint a commissioner, advertise the land, and offer it for sale at public auction without a bidder was first obtained, ready, able, and willing to bid at the auction sale as much as $8,000 as a first bid for the land. That the plaintiff entered into a purported agreement with the county judge of Lubbock county, which was in substance that if the plaintiff would procure a bona fide bidder for said land, ready, willing, and able to pay $8,000 for the land in question at public auction, he should receive compensation for his services. That this agreement was discussed by the commissioners' court in regular session, though no actual order as to such agreement was made, passed, or entered on the minutes of the court. That in compliance with the agreement, plaintiff procured J. W. Kerley, who was ready, willing, and able to bid $8,000, and who entered into a contract with the county judge, theretofore appointed commissioner to sell and dispose of said land, to bid said sum and placed the $8,000 in cash with the county treasurer of...