N. A. Matthews Lumber Co. v. Van Zandt County

• Decision Date: 05 December 1903
• Citation: 77 S.W. 960
• Parties: N. A. MATTHEWS LUMBER CO. v. VAN ZANDT COUNTY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

77 S.W. 960

N. A. MATTHEWS LUMBER CO. v. VAN ZANDT COUNTY.^*

Court of Civil Appeals of Texas.

December 5, 1903.

Appeal from Van Zandt County Court; John W. Davidson, Judge.

Action by the N. A. Matthews Lumber Company against Van Zandt county. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Yantis & Hubbard, for appellant.

TALBOT, J.

In 1902-1903 R. E. Lee was road overseer on that section of the public road which leads from Edgewood to Stewarty Chapel, in commissioner's precinct No. 3 of Van Zandt county. While such overseer he bought from appellant a bill of lumber amounting to $206.62, without authority from the commissioners' court of said county, which was used in making causeways in a creek bottom on said public road. The commissioners' court of said county made no order for said lumber, and had no contract whatever with appellant for the same. The appellant's bill was approved by Lee as road overseer, and by them presented to the commissioners' court for allowance. The commissioners' court at its February term, 1903, rejected and refused to allow said claim, and appellant brought suit thereon in the county court, and, having failed to recover, prosecutes this appeal.

The sole question for determination is: Can a county be held liable on a contract made by a road overseer, without an order or authority of the commissioners' court, for material to repair or improve one of its public roads? We find no statutory authority for such liability, and, after a review of the decisions of this state bearing upon the subject, are of the opinion that no such liability exists. The duties of a road overseer are prescribed by statute, and the only authority conferred upon him by law to bind the county for material used in repairing public roads is found in article 4744, Batts' Ann. Civ. St., which reads thus: "When to the overseer it may appear expedient to make causeways and build bridges or to gravel any public road, the timber, gravel, earth, stone or other necessary material, most convenient therefor, may be used, but in such case the owner of such timber, or gravel, earth, stone or other necessary material, shall be paid out of the county treasury a fair compensation for the same, to be determined by the commissioners' court upon application of such owner."

It will be observed that no authority is given the road overseer by virtue of the above statute to agree upon and fix with the owner of such material the compensation to be paid...