First Nat. Bank of Marlin v. Dupuy

• Court: Texas Court of Appeals
• Writing for the Court: Alexander
• Citation: First Nat. Bank of Marlin v. Dupuy, 133 S.W.2d 238 (Tex. App. 1939)
• Decision Date: 12 October 1939
• Docket Number: No. 2136.,2136.
• Petition History: writ dism'd judgm. cor
• Parties: FIRST NAT. BANK OF MARLIN v. DUPUY et al.

133 S.W.2d 238

FIRST NAT. BANK OF MARLIN v. DUPUY et al.

No. 2136.

Court of Civil Appeals of Texas. Waco.

October 12, 1939.

Rehearing Denied November 23, 1939.

Error from District Court, Falls County; Graham Gillis, Judge.

Suit by the First National Bank of Marlin against H. A. Dupuy on a note, and against the City of Marlin and the Marlin Independent School District on written assignments of commissions due H. A. Dupuy from such defendants. To review a judgment for plaintiff against defendant Dupuy on note but in favor of other defendants on the assignments, the plaintiff brings error.

Affirmed.

Robt. D. Peterson, of Marlin, and J. W. Spivey, of Waco, for plaintiff in error.

E. M. Dodson, of Marlin, and Geo. E. Shelley, of Austin, for defendants in error.

ALEXANDER, Justice.

H. A. Dupuy was the tax assessor and collector for the city of Marlin and also the Marlin Independent School District for three terms of two years each, the last term ending April 15, 1936. He was entitled to a commission of 2% of the taxes so assessed by him for his services. On March 30, 1936, he borrowed money from the bank and as security therefor gave to the bank an assignment of all fees and commissions due him by said taxing units for assessing the 1936 taxes. Prior to making the loan, the bank secured a written acceptance of such assignments, signed by the mayor of the city of Marlin and attested by the city secretary and the chairman of the board of trustees of the Marlin Independent School District. The bank sued Dupuy to recover on his note and the taxing units to recover on said written assignments and acceptances. The taxing units denied the authority of the mayor and the chairman of the board of school trustees to bind the taxing units by their acceptance of said assignments and alleged that Dupuy was indebted to said taxing units for taxes collected and misappropriated by him in amounts in excess of the fees due him, and that by reason thereof they were not liable to the bank on said assignments. A trial before the court without a jury resulted in judgment for the bank against Dupuy on the note but in favor of the taxing units on the assignments. The bank has appealed.

The first material question to be determined is the validity or effect of the acceptances of the assignments by the mayor and chairman of the board of school trustees. There is no contention that the city council or board of trustees ever formally or otherwise authorized or ratified the acts of the mayor or chairman of the board of trustees in accepting said assignments. The affairs of a municipality are usually vested in a city council or other governing board and in order to bind such municipality by contract, it is necessary that the contract be authorized or ratified by the administrative board as a body and not merely by the mayor or other individual member thereof. 34 Tex.Jur. 457; 30 Tex.Jur. 190, 264, 323; City of Floydada v. Gilliam, Tex.Civ.App., 111 S.W.2d 761; King v. Guerra, Tex.Civ.App., 1 S.W. 2d 373; City of Denison v. Smith, Tex.Civ. App., 260 S.W. 207; Indiana Road Mach. Co. v. City of Sulphur Springs, Tex.Civ. App., 63 S.W. 908; Penn v. City of Laredo, Tex.Civ.App., 26 S.W. 636. The same rule applies to schools and school districts. 37 Tex.Jur. 944; Foster v. City of Waco, 113 Tex. 352, 255 S.W. 1104; Moore v. Leonard Independent School Dist., Tex.Civ. App., 74 S.W. 324; Elgin-Butler Brick & Tile Co. v. Hillsboro Independent School Dist., Tex.Civ.App., 205 S.W. 942. Since the purported contracts of acceptance were approved only by the mayor and chairman of the board of school trustees and not by the city council and board of trustees, they were not binding on the city nor the school district.

The bank was charged by law with notice of the limited authority of the mayor and chairman of the board of school trustees and cannot rely thereon as a basis of estoppel as against the city or the school district. 34 Tex.Jur. 442; Parker v....