Head v. City of Gainesville

• Decision Date: 16 May 1923
• Docket Number: (No. 2749.)
• Citation: 254 S.W. 323
• Parties: HEAD et al. v. CITY OF GAINESVILLE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 323

254 S.W. 323

HEAD et al. v. CITY OF GAINESVILLE.^*

(No. 2749.)

Court of Civil Appeals of Texas. Texarkana.

May 16, 1923.

Rehearing Denied June 21, 1923.

Appeal from District Court, Cooke County; C. R. Pearman, Judge.

Action by the City of Gainesville against H. W. Head, the Southern Surety Company, and another. From a judgment for plaintiff, the named defendants appeal. Reversed and remanded.

The suit was by appellee as plaintiff against the Southern Construction Company, a partnership, the Southern Surety Company, a corporation, and H. W. Head as defendants. The judgment was by default. It was in appellee's favor against the construction company, the surety company, and Head for $15,000, and against the construction company alone for the further sum of $5,375. The motion of the construction company, the surety company, and Head to set aside the judgment having been overruled by the court below, the surety company and Head prosecuted this appeal.

It appears from allegations in appellee's petition and from instruments attached thereto and made parts thereof that in November, 1919, appellee advertised for bids "for furnishing all material and labor for the construction of approximately 31,000 square yards of street paving and 10,000 lineal feet curb and gutter." The construction company was a bidder, and its proposal "to do all the work and furnish all the material" for prices it specified per square yard, lineal foot, etc., "as provided by the attached plans and specifications," was accepted by appellee. Thereupon appellee and the construction company entered into a contract as follows:

"This agreement made and entered into this the 20th day of November, 1919, by and between the city of Gainesville, Cooke county, Tex., party of the first part, hereinafter called the city, and the Southern Construction Company of Dallas, Tex., party of the second part, hereinafter called the contractor, witnesseth: That for and in consideration of the payments and agreements hereinafter mentioned, to be made and performed by the said party of the first part, and under the penalty expressed in a bond bearing even date with these presents and hereto annexed, the said party of the second part agrees with the said party of the first part to commence and complete the construction of certain street improvements and all extra work in connection therewith as stated in the general specifications, and at his own proper cost and expense to furnish all tools, materials, machinery, labor, supervision and other accessories necessary for the said construction in accordance with the conditions and prices stated in the proposal attached hereto, and in accordance with the plans and specifications therefor as signed by the parties hereto, all of which are made a part hereof, and all in the manner and under the conditions hereinafter specified. All the provisions of this agreement shall be performed in the city of Gainesville, Tex., and any suit to enforce its provisions or for damages for breach thereof shall be brought in Cooke County, Texas. In witness whereof," etc.

It will be noted that by the terms of the contract the construction company was to furnish the material, etc., and do the work "in accordance with the plans and specifications therefor" made a part of the contract, and "all in the manner and under the conditions hereinafter specified." It will also be noted that no "manner" nor "conditions" were specified. Neither the "general specifications," nor the other "plans and specifications," nor the bond, referred to in the contract, were set out in the petition or made parts thereof by exhibits. What they were is not shown by anything in the record. By a "supplemental contract," also made on November 20, 1919, the parties agreed that the construction company should be paid the amount which should become due it under the original contract, in interest-bearing warrants of the city in sums aggregating $50,000 and maturing from year to year for 20 years, instead of in money.

September 10, 1920, appellant Head wrote appellee's city council a letter as follows:

"Gentlemen: By virtue of an order from the Southern Construction Co. any moneys due said Southern Cons. Co. from the city of Gainesville for work done and materials furnished under a contract for street improvements is to be paid to me, said amounts being payable in city warrants.

"I understand it is now the purpose and intent of the city council of Gainesville, Texas, to have issued to said Southern Cons. Co. $10,000 in warrants, these warrants to be properly indorsed by Southern Cons. Co. and delivered to me.

"In the event of any dispute, discrepancy or other contingency arising which might in any way affect the amount of work done or materials furnished by Southern Cons. Co., so as to in any way affect said $10,000 in warrants, I hereby agree to protect and indemnify said city of Gainesville, Texas, up to the sum of $10,000.

"None of said money will be paid or credited to Southern Cons. Co. except in such amounts as may be shown to be due under signature of mayor of Gainesville, Texas, and when such amount shall equal $10,000 then this obligation to be discharged.

"In case of suit arising out of any matters set out herein or in case suit becomes necessary to enforce any rights secured hereby, such suit shall be filed in Cooke county, Tex."

September 20, 1920, the surety company, acting by its attorney in fact, Sam Kirbpatriel, executed and delivered to appellee an instrument as follows:

"Know all men by these presents, that the Southern Surety Company of Des Moines, Iowa, is held and firmly bound unto the city of Gainesville, Tex., in the sum of $15,000, for the payment of which sum said Southern Surety Company hereby binds itself, its successors and assigns.

"The condition of the foregoing obligation is such that whereas on the 10th day of September, 1920, H. W. Head of ...