Mineralized Rubber Co. v. City of Cleburne
| Decision Date | 03 February 1900 |
| Citation | 56 S.W. 220 |
| Parties | MINERALIZED RUBBER CO. v. CITY OF CLEBURNE. |
| Court | Texas Court of Appeals |
Appeal from Johnson county court; W. D. McKay, Judge.
Action by the Mineralized Rubber Company against the city of Cleburne. From a judgment in favor of defendant, plaintiff appeals. Reversed.
English & Ewing and Goldsmith & Walker, for appellant. R. S. Phillips, for appellee.
Appellant instituted this action to recover of appellee the possession of 1,000 feet of rubber fire hose, valued at $750, and for rent for the use of same for six months, at $30 per month. The hose was sequestered and replevied by appellee. The case was tried by the court without a jury, and judgment rendered for appellee.
The evidence shows that the city council of Cleburne, a city duly incorporated, made a contract with an agent of appellant to purchase from appellant 1,000 feet of rubber fire hose for the sum of $750, payable in three years. The city reserved the right, however, to pay said amount before the expiration of 12 months, without interest, or "at any time before maturity, with interest to date of said payment"; said amount to bear 6 per cent. interest per annum from date. Appellant drew three drafts on the city, for $250 each, payable on or before three years from date, etc., as agreed upon, which drafts were accepted by the mayor of said city. The hose was to be delivered in Cleburne; the freight to be paid by appellant. In pursuance of the contract the hose was shipped, and received by the city, which paid the freight,—$21. The city made no provision, by the levy of a tax or otherwise, for the payment of said debt; nor was it contemplated at the time to be satisfied out of the current resources of that year, or out of any fund within the immediate control of the city. This matter was not mentioned or referred to at the time of entering into the contract. Some three weeks thereafter this was called to the attention of the city authorities by appellant, and request made that provision for the payment of the debt be made; but this was refused, because the city had exhausted its power to further tax, the constitutional limit to tax having at that time been reached.
It is insisted by appellant that, as no provision was made by the city to meet this debt at its maturity, the contract was void, and it had the right to repossess itself of the property for that reason. We are of the opinion that this contention is correct. The contract under consideration comes directly within article 11 of our constitution, which prohibits the creation of a debt "unless provision is made at the time of creating the same for levying and...
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