Pritchard & Abbott v. McKenna

• Decision Date: 05 January 1961
• Docket Number: No. 13614,13614
• Citation: 343 S.W.2d 752
• Court: Texas Court of Appeals
• Parties: PRITCHARD & ABBOTT et al., Appellants, v. Patrick H. McKENNA et al., Appellees.

Page 752

343 S.W.2d 752

PRITCHARD & ABBOTT et al., Appellants, v. Patrick H. McKENNA et al., Appellees.

No. 13614.

Court of Civil Appeals of Texas, Houston.

Jan. 5, 1961.

Rehearing Denied Feb. 9, 1961.

Fulbright, Crooker, Freeman, Bates & Jaworski, Leon Jaworski, B. J. Bradshaw, Houston, E. G. Aycock, Fort Worth, for appellant Pritchard & Abbott.

Markwell, Stubbs, Decker & Dalehite, William D. Decker, Galveston, for appellants Galveston County and others.

Tramonte & Urbani, D. S. Tramonte, Jr., Galveston, Leo Brewer, San Antonio, for appellees.

SERLEIN, Justice.

This suit was brought by appellees, Patrick H. McKenna, and others, residents and taxpayers of Galveston County, Texas, for themselves and other taxpaying citizens of said county, against Galveston County, the County Judge and Commissioners of that County, the County Tax Assessor and Collector, hereinafter called assessor, the Clerk of the County Court, and Edward S. Pritchard and John L. Abbott, comprising the partnership of Pritchard & Abbott, for a temporary injunction restraining appellants from operating under or pursuant to a contract between the County of Galveston and Pritchard & Abbott dated February 2, 1959, and prohibiting the County from making any additional payments to the firm of Pritchard & Abbott. They prayed that on final hearing said contract be declared null and void and the temporary injunction be made permanent. Pritchard & Abbott filed a cross-action for damages against appellees and the sureties on their bond, alleging they wrongfully procured the issuance of the temporary injunction which was granted and later made permanent. They also filed a cross-action against Galveston County and its Commissioners Court to recover in quantum meruit in the event the contract should be held illegal and void.

The case was tried on the merits before the court without a jury. The court entered judgment in favor of appellees, decreeing said contract null and void and that the County was not liable or authorized to pay appellants, Pritchard & Abbott, any compensation whether under the theory of implied contract, quantum meruit or otherwise, for any services or materials furnished under such contract, and that Pritchard & Abbott take nothing on said cross-actions.

By their first two points, Pritchard & Abbott assert in essence that the trial court erred in holding the contract null and void, in restraining them from completing the part of the work which remained to be done at the time suit was filed, and in not allowing them the agreed compensation upon completion of the work, contending that all of the work they had done or that they would have done had they been permitted to proceed, was work which the Commissioners Court could legally and validly employ them to do without obtaining approval of any State official. Practically the same contentions are advanced by Galveston County and the other appellants in their separate brief with respect to the claim of Pritchard & Abbott on the contract. By trial amendment they alleged, however, that in the event the contract be held void ab initio, Pritchard & Abbott take nothing.

The contract in question was entered into pursuant to a resolution of even date therewith duly adopted by the Commissiones Court of Galveston County. A copy of the contract is appealed hereto as Exhibit A. We are called upon to determine whether the trial court erred in holding such contract null and void, and if so, whether there can be any recovery in quantum meruit.

Appellants do not assert, and we do not find, that the meaning of the contract is not plain. Its language is not fairly susceptible to more than one interpretation. Therefore, its general purpose and the true intention of the parties must be arrived at from a consideration of the contract as a whole and not from the acts of the parties. Lone Star Gas Co. v. X-Ray Gas Co., 1942, 139 Tex. 546, 164 S.W.2d 504. Nevertheless, we shall discuss some of the evidence with respect to what was done under the contract, not because the contract is ambiguous, but because such evidence shows a practical construction thereof, which should be given strong weight by the court in construing it. Texas & N. O. R. Co. v. Orange County, tex.Civ.App., 206 S.W. 539, writ ref.; Gulf Coast Water Co. v. Hamman Exploration Co., Tex.Civ.App., 160 S.W.2d 92, writ ref.; City of Athens v. Andrews, Tex.Civ.App., 231 S.W.2d 928, writ ref.

The evidence shows and the trial court found that by the contract in question Galveston County undertook to employ Pritchard & Abbott to do certain work and furnish certain materials to the County, requiring them, among other things, to calculate assessed values of all properties in Galveston County, Texas, it being distinctly understood by and between said parties that the appraisals and valuations as called for in the contract include the appraisals and valuations on all property in Galveston County, real, personal, mixed, tangibles and intangibles, as of January 1, 1959. The court also found that by such contract the Commissioners Court employed sais firm to do the work of providing a system for the tax assessor of said County 'in order to eliminate the numerous errors that now appear on the tax rolls each recurring year' as defined by Article 7264a, Vernon's Annotated Civil Statutes; that said contract was made or entered into by the Commissioners Court in connection with the collection of delinquent taxes as defined in Article 7335a, V.A.T.S.; that the State Comptroller of Texas did not execute or join in said contract, and the same was not approved by the State Comptroller or by the Attorney General of the State; and that the valuations of all items of taxable property in Galveston County for the purpose of taxation for the year 1959 were originally or in the first instance made by said Pritchard & Abbott.

We think the procedure generally followed in the performance of the contract is well summarized in the following findings of the court which are supported by evidence:

'8. During the period of time for taxpayers of Galveston County to file inventories and assess their property for taxation for the year 1959, the regular and customary procedure prescribed and followed by the office of the county assessor of taxes was as follows: Upon the taxpayer calling at the office of said assessor, the taxpayer was shown a form of rendition sheet upon which had been printed by the addressograph process the valuation of properties as valued for 1958 taxes, but a blue line had been drawn through such printed figures and immediately above said line there had been handwritten in blue the valuation which had been made for each item of property by said Pritchard & Abbott for 1959. If the taxpayer did not object to said valuations as so made by Pritchard & Abbott, the taxpayer signed and filed said rendition sheet with the assessor's office. If the taxpayer objected to said valuation as so made by Pritchard & Abbott for 1959, the taxpayer was instructed by the said assessor or his deputies or employees to go to said Pritchard & Abbott's office and employees and to negotiate with said Pritchard & Abbott in regard to the valuations so objected to. In many instances, Pritchard & Abbott, at the request of the taxpayer, made a further investigation as to the values of items of property. All of said negotiations between taxpayers and Pritchard & Abbott were for the purpose of trying to reach an agreement as to such valuations. If an agreement was reached by the taxpayer and Pritchard & Abbott for a value different from the one therefore so made by Pritchard & Abbott, said value was crossed out and the new agreed value was written on the rendition sheet by Pritchard & Abbott. In those cases where an agreement was reached between the taxpayer and Pritchard & Abbott, the taxpayer signed the rendition sheet containing the agreed valuations and filed said rendition sheet with the office of the assessor or left it with Pritchard & Abbott to be filed with the office of the assessor. In those cases where no agreement was reached between the taxpayer and Pritchard & Abbott, the word 'Protested' would customarily be written on the valuation sheet, which would then be filed by the taxpayer, either directly or through Pritchard & Abbott, with the office of the assessor.

'9. Before any taxpayers of Galveston County filed inventories or rendered their property for taxation for the year 1959, defendant J. H. Oberndorfer, Assessor and Collector of Taxes for Galveston County, caused a rubber stamp to be made reading as follows: 'This value was set by Pritchard & Abbott by order of the Commissioners Court.' Said words 'This value was set by Pritchard & Abbott by order of the Commissioners Court' were stamped on every inventory and assessment sheet covering every rendition and assessment of property for taxation by Galveston County in the year 1959, and said words were stamped on all of said sheets before they were shown to the taxpayers in the first instance, all of which was done by and pursuant to the express orders and instructions of said J. H. Oberndorfer as such Assessor and Collector of Taxes.'

There is also evidence that in accepting the proposal of Pritchard & Abbott, the Commissioners Court was acting on the recommendation of the assessor; that all inventory sheets for the year 1959 were prepared by the assessor on the addressograph machine in his office during October and November of 1958 and contained the same printed figures that were on the 1958 inventory sheets; that Pritchard & Abbott did not appraise or list any item of property which did not appear on the inventory sheets supplied by the tax assessor and did not collect any delinquent taxes.

The trial court made the following additional findings of fact which find support in the evidence: That on numerous occasions the individual property owners went to the tax assessor-collector to complain about the values...