Presidio County v. Clarke

• Decision Date: 15 February 1905
• Citation: 85 S.W. 475
• Parties: PRESIDIO COUNTY v. CLARKE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

85 S.W. 475

PRESIDIO COUNTY v. CLARKE.^*

Court of Civil Appeals of Texas.

February 15, 1905.

Appeal from District Court, Presidio County; B. C. Thomas, Judge.

Action by P. H. Clarke against Presidio county. From a judgment for plaintiff, defendant appeals. Affirmed.

J. A. Gillett, for appellant. P. H. Clarke, for appellee.

NEILL, J.

The nature of this case is stated in an opinion by this court rendered on a prior appeal. Clarke v. Presidio County, 79 S. W. 593. The judgment now appealed from is in favor of the appellee for $1,003.25.

The only question of fact in the case is whether the services rendered Presidio county by appellee as an attorney at law were gratuitous, or performed under a contract entered into between appellant and appellee for such services; for the undisputed evidence shows that the services were rendered the county by the appellee, and that they were reasonably worth the sum recovered. While the testimony is conflicting, it is reasonably sufficient to show that the services were rendered in pursuance of a contract between the parties.

Conclusions of Law.

1. The court did not err in allowing the plaintiff to testify as to the contents of the written claim presented by him to the commissioners' court for the amount due him from the county for his services. The bill of exceptions to the testimony shows that appellant was notified, through its attorney of record, to produce such written claim upon the trial, so that it might be used in evidence by the plaintiff. It was not produced, and therefore, if notice to appellant had been necessary as a prerequisite to the introduction of secondary evidence of its contents, appellant's failure to produce it would have rendered such secondary evidence admissible. But we do not think that notice to appellant to produce the paper on trial was, under the law, essential to the introduction of secondary evidence as to its contents. Appellant was charged with the custody of the original paper, and the nature of this suit was such as to give defendant notice that it would be necessary for plaintiff to prove the contents of the paper upon the trial. 2 Elliott, Ev. § 1441.

2. The order of the commissioners' court authorizing and instructing the plaintiff to act as counsel for defendant in the case against the county wherein his services were by virtue of said order afterwards rendered is plain and unambiguous, and plainly showed upon its face what words it did or did not contain. Therefore the court did not err in refusing to allow Judge Kilpatrick to testify that the order was properly entered, and that it did not contain the word "employ," or to explain the meaning of said order, for there was no "latent ambiguity" in it.

3. It is not shown by appellant's bill of exception upon which the third assignment of error is predicated what the "certain court papers" were which Judge Kilpatrick testified,...