Sowell v. Griffith

• Citation: 294 S.W. 521
• Decision Date: 04 May 1927
• Docket Number: (No. 942-4739.)
• Parties: SOWELL et al. v. GRIFFITH.
• Court: Supreme Court of Texas

294 S.W. 521

SOWELL et al. v. GRIFFITH.

(No. 942-4739.)

Commission of Appeals of Texas, Section A.

May 4, 1927.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by W. H. Griffith against D. S. Sowell and others, composing the Board of Water Commissioners of the City of Cleburne, and A. M. Lockett & Co., Limited. To review a judgment of the Court of Civil Appeals (287 S. W. 673) reversing a judgment for defendants, defendants bring error. Reversed.

E. A. Rice, of Cleburne, and Lee, Lomax & Wren, of Fort Worth, for plaintiffs in error.

Goree, Odell & Allen, of Fort Worth, for defendant in error.

BISHOP, J.

Statement of this case is as made by the Court of Civil Appeals, as follows:

"This suit was instituted by appellant, W. H. Griffith, a resident property tax payer of the city of Cleburne, against appellees D. S. Sowell and others, composing the board of water commissioners of said city, and A. M. Lockett & Co., Limited, a corporation, to restrain the execution and performance of a contract made on December 1, 1924, by said board of water commissioners with said A. M. Lockett & Co., Limited, for the purchase of certain waterworks machinery for the waterworks plant of said city. Said city of Cleburne, its mayor, and the members of its city council were made parties defendant, and are appellees herein. The contract sought to be enjoined, as originally entered into, provided for the purchase of said machinery for the sum of $49,788, payable as follows: $5,000 on January 5, 1925; $10,000 upon delivery of the machinery; and the balance in 14 notes, 13 of the same being for the sum of $2,500 each and one for $2,208, the first of which was to be due 30 days after the erection of the machinery, and one every 30 days thereafter until the last was paid. The parties to said contract estimated at the time that it would take at least five months to manufacture, ship, and install said machinery, which would have made the first note mature not earlier than July 1, 1925, and the last one August 1, 1926, making the last 8 of said notes, aggregating $19,888, mature more than one year after the final execution of the contract. In addition to the contract price of the machinery, the board of water commissioners were to pay freight charges and cost of installation, estimated at the aggregate sum of $6,000. Said contract provided that all indebtedness arising thereunder, whether evidenced by notes or not, should be payable at New Orleans, and that deferred payments should bear interest at 6 per cent. per annum from date of shipment, and should be a first lien on said property until said debt was paid. Said contract further provided that said Lockett & Co. did not relinquish their title to said property until it was fully paid for, and that, in case of default, said Lockett & Co. might declare the whole amount remaining unpaid then due and payable, and without process of law take possession of said property, remove the same from the premises, and sell the same as under execution for the purpose of satisfying their demands. It further provided that the board of water commissioners should keep said property insured, with the loss, if any, payable to Lockett & Co. as its interests might appear. Said contract was registered as a chattel mortgage in the office of the county clerk of Johnson county on January 15, 1925.

"Appellant instituted this suit on the 14th day of February, 1925. On March 24, 1925, the court granted a temporary injunction restraining appellees from proceeding further in performance of said contract, but, appellant having failed to make the bond required, the order granting said injunction was set aside and vacated.

"Said original contract for the purchase of said machinery was modified by a supplemental contract in writing, dated May 15, 1925. By the terms of said supplemental contract the board of water commissioners agreed, in substance, that all funds, including bonds or claims or bills receivable theretofore accumulated and the net receipts and revenues thereafter to be derived by said water department by operation of its waterworks system, over and above the necessary expense of operating the same, should be and were set aside, and constituted a fund to be used solely for paying off and discharging its obligations, under its said original contract, and the notes to be executed thereunder until said obligations were fully satisfied, and declared that such funds and net receipts and revenues were there pledged to secure its said obligations. In consideration thereof said Lockett & Co. agreed to relinquish and waive all claims or demands they had or might have ever asserted against any other revenues or income from any source whatsoever of the city of Cleburne other than the revenues from the waterworks system as aforesaid. It was expressly provided in said supplemental contract that nothing therein should be taken as changing or modifying the original contract, except as therein expressly stated, nor as a waiver on the part of Lockett & Co. of any lien, right, or remedy under said contract other than such as were expressly waived as above stated.

"There was a trial to the court on May 31, 1925. The evidence shows that the city of Cleburne was operated under a home rule charter, adopted September 17, 1914; that said city had shortly theretofore acquired a waterworks plant; that it paid for the same with the proceeds of a bond issue in the sum of $128,000; that it, at the same time, improved and equipped said plant with the proceeds of a bond issue in the further sum of $50,000; and that all said bonds were outstanding at the time of trial."

The trial court rendered final judgment denying Griffith relief, and on appeal this judgment was reversed.

Article 1175, subd. 11, R. C. S. 1925, applicable to cities which have adopted their charters under the Home Rule Amendment of our Constitution (article 11, § 5 [see Acts 1911, p. 284]), is as follows:

"Cities adopting the charter or amendment hereunder shall have full power of local self-government, and among the other powers that may be exercised by any such city the following are hereby enumerated for greater certainty: * * *

"11. To have the exclusive right to own, erect, maintain and operate waterworks and waterworks system for the use of any city, and its inhabitants, to regulate the same and have power to prescribe rates for water furnished and to acquire by purchase, donation or otherwise, suitable...