McClintock & Robertson v. Cottle County

• Decision Date: 13 March 1939
• Docket Number: No. 5000.,5000.
• Citation: 127 S.W.2d 319
• Parties: McCLINTOCK & ROBERTSON v. COTTLE COUNTY.
• Court: Texas Court of Appeals

127 S.W.2d 319

McCLINTOCK & ROBERTSON v. COTTLE COUNTY.

No. 5000.

Court of Civil Appeals of Texas. Amarillo.

March 13, 1939.

Rehearing Denied April 17, 1939.

Appeal from District Court, Cottle County; Isaac O. Newton, Judge.

Suit by McClintock & Robertson against Cottle County upon a written contract under which the plaintiffs were engaged to perform services for the defendant. Judgment for defendant, and the plaintiffs appeal.

Judgment reversed and cause remanded.

Williams & Bell, of Childress, for appellants.

James M. Whatley, William B. Combest, and C. E. Blount, all of Paducah, for appellee.

JACKSON, Justice.

This suit was instituted in the District Court of Cottle County by the appellants, McClintock & Robertson, a firm of attorneys composed of V. H. McClintock and Elgar L. Robertson, against the appellee, the County of Cottle, upon a written contract by the terms of which the appellants were engaged to perform certain services for the appellee.

The appellants for cause of action allege that prior to the institution of this suit Cottle County had at different times during the preceding years created certain valid bonded indebtedness and with the proceeds thereof had constructed certain designated state highways in the county and a large portion of such indebtedness was eligible for participation in the funds coming into the County and Road District Highway Fund; that about January 11, 1937, the County of Cottle, acting by its county judge and commissioners' court, determined that in order to secure any of such fund it was necessary to employ attorneys to examine the records of said county and the State Highway Department, assemble such data and evidence as was necessary to determine the amount of such bonded indebtedness eligible to participate in said fund and to secure the approval of such indebtedness by the proper officials for participation in such fund; that on said date the appellants and appellee entered into a written contract under the provisions of which appellants were employed to investigate the records of such bonded indebtedness and to assemble the data necessary to have the amount eligible for participation in said fund determined and approved by said Board of County and District Road Indebtedness.

The original contract, in paragraph 5, stipulated that: "For the services aforesaid, said county will pay to said attorneys as fees therefor, a sum equal to 10% of the net amount or amounts of indebtedness or reimbursement of expenditures of said county, that may be assumed or approved for participation by the state, or any board, department, or agency of the state or Federal government, and of the amount or amounts of any funds or refunds that may be made to the said county from any source as a result directly or indirectly, wholly or in part, of the services of said attorneys under this contract, and while the same is in force."

The contract provides in paragraph 6: "The term of this contract is to be a period of two (2) years from the date of the approval and acceptance hereof by said Commissioner's Court for said county; provided however, that should any part of such undertaking on the part of said attorneys be started or commenced within said two year term, and not finished or completed within said time, said attorneys shall have a reasonable time in which to finish or complete the same so long as there may be a chance of securing or obtaining for said county, such State or other participation and/or assumption of any part of its said indebtedness; and it is further understood that this contract shall be exclusive during its life."

On February 8, 1937, the contract was amended as follows: "It is especially agreed and understood that this contract is to concern and include only such class of indebtedness as is now eligible for participation by the state under existing laws, and is not intended to include any indebtedness that may be made eligible by the passage of any new laws, and which would make other classes of indebtedness eligible for participation without the necessity of the service of said attorneys."

Section 5 of the original contract was amended as follows: "It being especially agreed and understood however, that the County shall not be required or liable to pay said attorneys on their fees as aforesaid in any one year, a sum greater than the total amount that may be paid during such year by the state or any agency thereof, on any such indebtedness that may be approved for participation by the state, and that if the amount paid by the State during the first year after such approval is not sufficient to pay all of said fees, the balance should be carried over and be paid during succeeding years until the amount actually paid by the State, or so much thereof as may be necessary, shall equal the total amount of fees due said attorneys. It being understood that by the amount paid by the State is meant to include only amounts so paid by the State upon indebtedness approved by the State for participation through the services of said attorneys under this contract."

The appellants pleaded that there were $203,133.40 of outstanding bonded indebtedness of Cottle County at the time the contract was made between them and appellee eligible for participation in the County and Road District Fund. They assert that in pursuance to the provisions of the contract they engaged for a period of about two months in investigation of the records of Cottle County pertaining to such bonded indebtedness, assembled data and evidence showing the amount thereof and what amount was eligible for participation in the fund; that they made proper application to the Board of County and District Road Indebtedness, submitting some data to the Board indicating that $203,133.40 was entitled to participate in the fund; that the Board of County and District Road Indebtedness would have approved said amount as eligible for participation, but the County without any legal reason therefor, attempted to abrogate the contract and refused to permit the auditor of the Board of County and District Road Indebtedness to examine the records and reports of Cottle County and thereby prevented the appellants from presenting the necessary data and evidence obtained by them to the Board and as the result thereof the County was deprived of having said amount of its indebtedness approved for participation in the fund and the appellants were deprived of the fee which they would have earned but for the unjustified repudiation and breach of their contract by appellee.

The appellants also aver that at the time the contract was made it was not possible to determine what amount of attorneys' fees, if any, would be due them for their services since the contract was contingent and the amount of such fees depended entirely upon the amount of the bonded indebtedness of Cottle County the Board of County and District Road Indebtedness determined to be eligible to participate in the fund; that at the time of the creation of the bonded indebtedness Cottle County provided, in accordance with the Constitution and law to discharge such indebtedness as it matured and the...