Gray County, Tex. v. Hamer

• Decision Date: 13 December 1921
• Docket Number: 3665.
• Citation: 277 F. 155
• Parties: GRAY COUNTY, TEX., v. HAMER. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

277 F. 155

GRAY COUNTY, TEX., v. HAMER. ^[1]

No. 3665.

United States Court of Appeals, Fifth Circuit.

December 13, 1921

A. M Mood, of Amarillo, Tex., for appellant.

W. H Kimbrough, of Dallas, Tex., and R. E. Underwood and M. J. R Jackson, both of Amarillo, Tex., for appellee.

Before WALKER, BRYAN, and KING, Circuit Judges.

BRYAN Circuit Judge.

Appellant a county in Texas, filed its original petition in the state district court. The suit was removed to the United States District Court by appellee, who is a citizen of a state other than Texas.

The amended petition seeks to cancel a series of county warrants, aggregating $15,000, which theretofore had been delivered to appellee, and also to vacate and set aside an order of the county commissioners' court requiring the issuance and delivery to appellee of another series of warrants aggregating $10,000, but which had not been issued or delivered.

June 18, 1917, in pursuance of an order of the county commissioners' court to that effect, a contract was entered into between the county and appellee providing for the construction and repair by appellee of certain county roads and bridges, for the principal sum of $15,000, to be represented by county warrants. The contract contained the following provisions:

'And the said county hereby promises and agrees with the said contractor to employ him, and does employ him, to provide the materials and do said work according to terms and conditions herein contained and referred to for the agreed price, and hereby contracts to pay the same at the time and in the manner and upon the conditions herein set forth. And other specifications as may be necessary to detail and illustrate the work to be done shall be furnished by the engineer, but the same shall be within the meaning of and consistent with this contract. The decision of the engineer, who shall be employed by the county, shall control as to the interpretation of the specifications during the execution of the work thereunder, but this shall not deprive the contractor of his right to redress, if required to do work or furnish materials by the county or engineer not mentioned in the specifications or in this contract, and in such case the contractor shall be entitled to a reasonable value for such extra material furnished and labor performed.

'It is hereby agreed and understood that all agreements and statements, provisos, and representations made by the county to the contractor, or representatives of either, have been reduced to writing, and signed, by both parties. All agreements, statements, promises, and representations by the above parties, that have not been reduced to writing and signed, are hereby rejected, and by this agreement canceled, and are to have no consideration under this contract. Said county has and does hereby agree and provide to pay the contractor for the building, construction, and repairing of said roads and bridges the principal sum and contract price of fifteen thousand ($15,000.00), ' etc.

July 9, 1917, the county commissioners' court entered an order, approving and ratifying its previous order of June 18, 1917, and, September 11, 1917, approved an estimate of $15,147.35 for the work required under the contract. December 10, 1917, the county commissioners' court entered up another order, which contains the following recitals:

'Whereas, at a regular term of this court, held on the 9th day of July, A.D. 1917, an order was passed approving a certain contract between Hamer and Hamilton, and Gray county, on the 18th day of June, A.D. 1917, providing for certain road construction and improvements in said county and containing a unit scale of prices for said work; and

'Whereas, the total amount of work done under said contract, by the said Hamer and Hamilton, and by J. F. Hamer, successor to said partnership, amounted in the aggregate to the sum of twenty-five thousand dollars ($25.000.00); and

'Whereas, 1917 time warrant road and bridge warrants aggregating the sum of fifteen thousand dollars have been issued and delivered to the said Hamer and Hamilton, leaving a balance yet due to the said J. F. Hamer, on said contract, amounting to the sum of ten thousand dollars ($10,000.00); and

'Whereas, the following order should have been entered at said July term, A.D. 1917, of this court:

'It is therefore ordered, adjudged, and decreed by the court that same may now be entered on the minutes of this court, nunc pro tunc, as of July 9, A.D. 1917.'

The foregoing recitals are followed by a purported modification of the original contract, so as to include an obligation on the part of the county to pay an additional sum of $10,000. The order contained, among other things, the following:

'It is further ordered that, in accordance with said contract, warrants of Gray county, to be called 'Gray County Road Warrants, Second Series' (to) be issued in the sum of ten thousand dollars ($10,000.00), evidencing the contract price to be paid to the said J. F. Hamer, contractor, by said county for the construction of roads and culverts in and for Gray county, according to said contract and the specifications which are made a part of said contract. Said warrants shall be numbered from 1 to 10 inclusive, and shall be of the denomination of $1,000, each, aggregating the sum of $10,000.'

Forms were prescribed for two series of warrants, one for $15,000 and the other for $10,000. The petition averred that the amount of the first series was excessive, and relief was prayed on that account. The petition further averred that the original contract contemplated the expenditure of only $15,000, and was discharged by the issuance of warrants for that amount; that the order for the issuance of the additional warrants in the amount of...