Hill County v. Colonial Trust Co.
| Decision Date | 09 May 1929 |
| Docket Number | (No. 752.) |
| Citation | 18 S.W.2d 787 |
| Parties | HILL COUNTY v. COLONIAL TRUST CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hill County; Sam R. Scott, Special Judge.
Action by the Colonial Trust Company against Hill County. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
See, also, 294 S. W. 516.
John Abney, of Hillsboro, for appellant.
Wear, Stollenwerck & Wear, of Hillsboro, for appellee.
Appellee instituted this suit against appellant to recover judgment on two time warrants for $1,193.50 each, dated April 1, 1919, and payable April 1, 1922; said time warrants having been given by appellant to the Avery Company of Texas in part payment of two tractors purchased by appellant from said company. Said time warrants were thereafter for value transferred to appellee. Appellee further alleged that, if it was not entitled to recover on the time warrants, it was entitled to recover the amount of same, being the unpaid portion of the balance due on the two tractors which appellant had purchased from said Avery Company. Appellant invoked two defenses: First, that the time warrants sued upon were unenforceable because they were given in contravention of section 7 of article 11 of the state Constitution, which prohibits a county from creating a debt without making provision for the levying of a tax to pay the same; and, as a defense to the claim of appellee for the recovery of the value of the tractors, pleaded the statute of limitation; and, further, that appellee as the holder of the time warrants cannot maintain a suit for the value of the machinery delievered to the county by the Avery Company. The case was tried to the court and resulted in judgment being rendered for appellee for the balance due on the two warrants.
The record shows that in February, 1919, the commissioners' court of Hill county advertised for bids for certain tractors, graders, and plows, and bids with reference thereto were submitted. On February 28, 1919, the commissioners' court entered the following order: "On this day came on to be examined the bids for tractors, graders, plows, etc., and it appearing upon investigation that the following are the lowest bids: The Avery Company of Texas bid on 25-50 tractor 3375.00, bid on 40-80 tractor $300.00—" (then follow bids by other parties on other material not necessary to quote)—"it is therefore the order of the court that the same be purchased from said companies, and that the above acceptance means for two graders and two tractors, and that the same be paid out of the funds of precincts 1 and 2 of said Hill County, Texas."
Appellee in its petition alleged that the order entered on the minutes of the commissioners' court, copied above, was for the purchase of two of the 25-50 tractors at a price of $3,375.00 each, or a total of $6,750, and that same were sold by Avery Company based on the bid which it had made to the county with reference thereto. Appellant alleged that the bid of Avery Company was to sell the two tractors to Hill county for the price of $3,375 each, to be payable in one, two and three years from date, with the understanding and agreement on the part of Avery Company that none of said purchase price was to be paid out of the funds for the year 1919, and that Hill County purchased said two tractors with that positive agreement, understanding, and contract. Appellant alleged in detail the terms of the bid and the agreement made between Hill county and Avery Company with reference to the sale and purchase of said two tractors, setting out specifically and definitely that under the bid and under the contract as made between them, there was to be paid no portion of the purchase price of said tractors during the year 1919; and that no provision was made by the commissioners' court at said time for the levying of any tax to pay said time warrants at the time they fell due.
Appellee offered in evidence the portion of appellant's answer setting out these defenses, and also offered in evidence the accounts presented by Avery Company at the time said time warrants were issued. W. T. Green, one of the county commissioners, the county judge, and the agent of Avery Company who carried on the negotiations with the county testified. Each of said witnesses testified, in effect, that the bid made by Avery Company to the county was that none of the purchase price of said tractors should be paid during the year 1919, but that same would be sold to the county on time, to be paid in one, two, and three years; the county judge and the commissioner who testified testifying that the tractors were being purchased to be used, one in commissioner's precinct No. 1 and the other in commissioner's precinct No. 2 of said county. W. T. Green was commissioner of precinct No. 2, and E. D. Ward was commissioner of precinct No. 1 at the time of the transactions in controversy. It was shown that Mr. Ward was dead at the time of trial and his testimony could not therefore be obtained.
The agent of Avery Company testified that the bid of said company was that it would sell the two tractors to Hill County for $3,375 each, and that said bid was accepted by the commissioners' court, subject to satisfactory demonstration of said tractors; that in making said bid Avery Company agreed to make such terms as the commissioners' court desired; and that, at the time the bid was accepted and the order given for said tractors, it was specified that same were to be paid for by time warrants to be due in future years, bearing 6 per cent. interest; and that said deferred payments were evidenced by the time warrants thereafter issued. After said bid was accepted, Avery Company delivered to appellant the two 25-50 tractors, and, after same were tested and accepted, Avery Company, on March 26, 1919, presented its six accounts, two payable each year for three consecutive years, being one on each of said tractors for each of said years; and the three accounts for the tractor purchased for the use of commissioner's precinct No. 1 were O. K.'d by E. D. Ward as commissioner and by R. T. Burns, the county judge, and by the county auditor. Each of the accounts for the tractor purchased for the use of commissioner's precinct No. 2 were approved by W. T. Green, commissioner of said precinct, and by the county judge and county auditor. Thereafter the county clerk issued the time warrants, payable two due April 1, 1920, two due April 1, 1921, and two due April 1, 1922, each account for which the respective warrants were issued being for $1,125, plus 6 per cent. interest per annum on all of the unpaid portion against the respective tractors. The first four of said warrants were paid when they became due. When the last two fell due their payment was refused, and this suit was instituted by appellee to recover the amount thereof.
This is the second appeal of this case. Colonial Trust Co. v. Hill County (Tex. Com. App.) 294 S. W. 516. The former appeal was from the judgment of the trial court sustaining a general demurrer to appellee's petition. On the former appeal of this case the Supreme Court stated:
After the cause was reversed, appellee, in a supplemental petition, for the first time alleged that the reason Avery Company presented said accounts to the commissioners' court of Hill county, payable in future years, was by reason of a subsequent ancillary agreement for the issuance of time warrants instead of demand warrants. Presumably, this was done to meet the suggestion contained in the opinion of the Supreme Court above quoted that "the fact that after the offer of sale was accepted and the tractors delivered time warrants were issued by order of the Commissioners' Court, payable in 1922, did not render void the obligation which was valid and binding when it was made." Appellee did not offer any evidence tending to show that any future or further order was made by the commissioners' court relative to the payment for said tractors other than that of February 28, 1919. If the time warrants were issued without any order of the commissioners' court, same would not be a binding or valid obligation against the county. Our Supreme Court, in the early case of Brown v. Reese, 67 Tex. 318, 3 S. W. 292, held that a warrant signed by the county judge was not enforceable unless same had been approved and ordered issued by the commissioners' court while in session. In said case it was held that parol evidence was admissible to show that such an order was actually made. Again, in Polly v. Hopkins, 74 Tex. 145, 11 S. W. 1084, the Supreme Court held that a contract made by the county judge without the approval of the commissioners' court, sitting as a court, was invalid. Again, it was held by the Supreme Court in Ball v Presidio County, 88 Tex. 60, 29 S. W. 1042, that a debt against a county could not be created except by an order of the commissioners' court, duly made by said court.
As we understand appellee's contention in this court, it does not claim that any order was issued except the one of February 28, 1919, by the commissioners' court...
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