Sutton County v. Security Trust Co.

• Decision Date: 07 June 1933
• Docket Number: No. 4039.,4039.
• Parties: SUTTON COUNTY v. SECURITY TRUST CO. et al.
• Court: Texas Court of Appeals

61 S.W.2d 862

SUTTON COUNTY v. SECURITY TRUST CO. et al.

No. 4039.

Court of Civil Appeals of Texas, Amarillo.

June 7, 1933.

Rehearing Denied June 28, 1933.

Appeal from District Court, Sutton County; Joe G. Montague, Judge.

Action by Sutton County against the Security Trust Company and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Cornell & Hughes, of San Angelo, and L. W. Elliott, of Sonora, for appellant.

W. A. Keeling and Coleman Gay, both of Austin, for appellees.

MARTIN, Justice.

On May 12, 1931, appellees made a contract with appellant to purchase $175,000 of its road bonds. Stipulations of the contract deemed material to this opinion are as follows:

"The above offer is made subject to the following conditions:

"It is hereby agreed and understood that the full $175,000.00 bonds will be delivered to the purchasers on or about Sept. 1st, 1931. * * *

"It is understood and agreed further that the above offer is made on the further condition that if this offer is accepted, the proceeds from the sale of said bonds when paid for will be deposited with the Security Trust Company of Austin, Texas, and withdrawn by the County as the work progresses on the project for which the bonds were voted, the County to receive interest on daily balances left with said Security Trust Co., Austin, Texas, at the rate of two and one-half per cent per annum, computed and remitted monthly to the County Depository, said funds left with the Security Trust Company to be at all times secured by municipal bonds of Texas or U. S. Government securities satisfactory to Sutton County, deposited with the American National Bank, Austin, Texas, as Trustee.

"It is further understood that this offer is subject to the above bonds being legally issued by said County, and to be approved by the Texas Attorney General and some reputable bond attorney, such as Chapman & Cutler, Chicago, Ill. We agree to pay the cost of printing bonds and attorneys opinion and all other necessary expenses incident to approval of bonds.

"We attach hereto Cashier's Check in the sum of $3,500.00 to be held by the County uncashed pending delivery of said bonds. Should we fail to carry out the terms of this contract this check may be cashed and the proceeds applied as full liquidated damages, otherwise the same to be returned to us simultaneously with payment for the said bonds."

On February 26, 1932, appellant brought suit against appellees, alleging the breach of this contract and asking for judgment for the $3,500 mentioned therein. Appellant alleged further: "Plaintiff timely and properly complied with all of the duties and obligations incumbent upon it by the terms of said contract."

Appellees answered by general denial, and pleaded certain special defenses not necessary to here mention.

Trial was before the court. Judgment was for appellees.

Appellant first urges as error the failure and refusal of the trial court to file findings of fact and conclusions of law. The truth of this matter is evidenced in the transcript only by an ex parte affidavit made by one of the attorneys for appellant. We are not authorized to review this assignment of error in the absence of a proper bill of exception. It has been pointedly and repeatedly so held. Warren v. Warren (Tex. Civ. App.) 260 S. W. 1068; Millard v. Miksch (Tex. Civ. App.) 42 S.W.(2d) 832, and authorities there cited.

It is not necessary to discuss certain propositions of appellant relating to special defenses which it is here claimed were not valid defenses to appellant's cause of action, since we have concluded that the evidence amply sustains the implied finding of the trial court that appellant failed to prove its case.

"The burden is upon the plaintiff to establish by proof the existence of the contract sued on, that he has complied with its provisions, or was ready and able to perform it, within the time prescribed, the happening of a condition upon which liability is based, a breach of the contract, and the amount due him under it." 10 Tex. Jur. § 305a, p. 526.

A general denial is sufficient to put the plaintiff upon proof of these several matters. Altgelt v. Emilienburg, 64 Tex. 150; Neblett v. McGraw & Brewer, 41 Tex. Civ. App. 239, 91 S. W. 309.

"If the promises and covenants of the parties are mutual and concurrent, the plaintiff must allege performance, or a readiness and willingness to perform, on his part, or some act or omission on the part of the defendant justifying a rescission of the contract." 10 Tex. Jur. p. 500.

"When liability on a contract depends upon the performance or happening of a condition precedent, the plaintiff must allege that the condition has happened or been performed, at least where he pleads the provisions of the contract imposing the...