Vilbig Bros. v. City of Dallas, 1577-6940.

Decision Date04 March 1936
Docket NumberNo. 1577-6940.,1577-6940.
PartiesVILBIG BROS. v. CITY OF DALLAS et al.
CourtTexas Supreme Court

This litigation grew out of the paving of Sherman street, between the south line of Williams street and the south line of Eakin street, in the city of Dallas, by the Uvalde Construction Company, under a contract between that company and the city of Dallas.

J. W. Vilbig and August Vilbig, owners of a block of land facing on said Sherman street, brought this suit against the city of Dallas and the Uvalde Construction Company, to declare void a paving assessment claim and lien against their property, for a permanent injunction enjoining the defendants from attempting to collect same, and that said property be freed from any lien therefor.

The Uvalde Construction Company answered by a general and ninety-one special exceptions, general denial, and specially that the plaintiffs failed to bring suit to set aside or correct the ordinance levying the assessment, within twenty days thereafter, as provided by the city's charter; also that the plaintiffs knew prior to the beginning of the paving work that contract therefor had been awarded to the defendant construction company, notwithstanding which they stood by and permitted performance of the work and expenditure of large sums of money for labor and material, resulting in great benefit to said property and its use by plaintiffs who are therefore estopped from questioning the validity of the assessment proceedings.

The construction company, by cross-action, prayed recovery on the certificate of special assessment amounting to $2,009.40 payable in equal installments, one within thirty days after May 27, 1931 and one each on or before from one to five years after said date, with interest at the rate of 7 per cent. per annum, payable annually, a reasonable attorney's fee for the collection thereof, and foreclosure of lien on the property involved.

The city of Dallas answered by general demurrer, adopted its codefendant's special exceptions to plaintiffs' petition, and general denial, also adopted that portion of its codefendant's answer as is applicable, and special plea, that acting under its charter authority, it proceeded to improve the street in question, stating generally the proceedings had.

The case was submitted to a jury on special issues, viz.:

"Special Issue No. 1.

"Do you find from a preponderance of the evidence that the Uvalde Construction Company failed in the substantial performance of the contract to lay the paving on the street in question in accordance with the plans and specifications in question? Answer Yes or No.

"Answer: No."

"Special Issue No. 3.

"What sum of money, if any, do you find from a preponderance of the evidence is a reasonable attorney's fee for Uvalde Construction Company for its prosecution of this suit in the trial court?

"Answer in Dollars, if any, and cents, if any.

"Answer: $ Two Hundred & No/100 Dollars ($200.00)"

"Special Issue No. 4.

"What sum of money, if any, do you find from a preponderance of the evidence is a reasonable attorney's fee for Uvalde Construction Company for its prosecution of this suit in the appellate court?

"Answer in dollars, if any, and cents, if any.

"Answer: $ One Hundred Dollars ($100.00)."

Judgment was thereupon rendered in favor of the construction company for the amount of its claim, interest, and attorney's fees, with foreclosure of lien; said judgment was affirmed by the Court of Civil Appeals. 80 S.W.(2d) 784.

Opinion.

In their petition for writ of error, plaintiffs in error say "the plaintiffs in error predicated their entire suit on the sole question that there was no competition in the awarding of the contract to pave Sherman Street in the City of Dallas, Texas."

The case was tried under the provisions of that city's charter (then in force) governing the making of street and sidewalk improvements and the assessment against abutting property owners, of certain costs thereof, which is complete within itself (Article X)—no contention being made that it is in conflict with any applicable general law on the subject; our consideration of the matters involved shall therefore be from the standpoint of the charter.

Said charter contains also the following provisions (Article XIV, § 42):

"No contract shall be entered into by the Board of Commissioners until after an appropriation has been made therefor, nor in excess of the amount appropriated, and all contracts shall be made upon specifications, * * *

"All contracts of whatever character, pertaining to public improvements, or the maintenance of public property of said city, involving an outlay of as much as five hundred ($500) dollars, shall be based upon the specifications to be prepared and submitted to and approved by the Board of Commissioners; and after approval by the Board of Commissioners, advertisement for the proposed work, or matters embraced in said proposed contract, shall be made, inviting competitive bids for the work proposed to be done, which said advertisement shall be published in a daily newspaper not less than five times. All bids submitted shall be sealed, shall be opened by the Mayor in the presence of a majority of the Board of Commissioners, and shall remain on file in the office of City Secretary and be open to the public inspection for at least forty-eight hours before any award of said work is made to any competitive bidder.

"The Board of Commissioners shall determine the most advantageous bid for the City, and shall enter into contract with the party submitting the lowest secure bid; and if, in the opinion of the Board of Commissioners, none of said bids are satisfactory, then the Board of Commissioners may have said work done by day labor, and a detailed statement of all such work done by day labor, showing the cost of same, shall be filed with the Board of Commissioners. Pending the advertisement of the work or contract proposed, specifications therefor shall be on file in the office of the City Secretary, subject to the inspection of all parties desiring to bid."

It is the insistence of plaintiffs in error that incorporation of the plans and specifications of patented articles for work to be done for the city and the advertisement for bids on such, negatives the existence of free competition in such bidding and is in violation of the above charter provision, and therefore void.

On October 20, 1930, the board of commissioners of the city of Dallas, by resolution, directed the improvement of Sherman street between the points named, and directed that bids be taken for the construction of the work with each of the materials therein specified, and for concrete curbs, or curbs and gutters, the work to be done with the material and according to plans and methods selected by the commissioners after bids are opened.

The bases upon which bids shall be taken are as follows:

(a) 6" concrete base.

The paving for the surface upon which bids shall be taken are as follows:

(a) 2" Warrenite Bitulithic;

(b) 2" Valdilithic Improved Limestone Rock Asphalt;

(c) 2" Willite Asphaltic Concrete;

(d) 2" Uvalde County Rock Asphalt;

(e) 2" Asphaltic Concrete.

The three first named were patented types of pavement covering the two-inch topping. All types of paving on which bids were asked contemplated an eight-inch pavement, and the specifications were alike in all respects, except as to the two-inch topping; the advertisement for proposals called for separate bids on said materials, and according to the terms of the specifications, which included those of the respective patented surface paving, and with as well as without a maintenance bond as provided therein. The city reserved the right to reject any or all bids, and bidders were required to state the time required to complete the surface of the entire street from end to end, remove all débris therefrom and said street opened to traffic.

The bids were submitted on uniform printed blanks as follows: "The...

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5 cases
  • Texas Highway Com'n v. Texas Ass'n of Steel Imp., Inc., A-9515
    • United States
    • Supreme Court of Texas
    • November 6, 1963
    ...with each other. The latter kind of competition includes, it seems plain, the former.' (Citing authorities). Vilbig Bros. v. City of Dallas (1936), 127 Tex. 563; 91 S.W.2d 336(5), hrhearing overruled 127 Tex. 563, 96 S.W.2d The court then concludes that the specifications in question which ......
  • City of San Antonio v. Guido Bros. Const. Co.
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • October 15, 1970
    ...Such original contracts did not create any liability upon the part of City, even if it had been a party thereto. Vilbig Bros. v. City of Dallas, 127 Tex. 563, 91 S.W.2d 336, 339, 96 S.W.2d 229 (1936); Niles v. Harris County Fresh Water Supply Dist. No. 1A, 336 S.W.2d 637, 638 (Tex.Civ.App.-......
  • Haas v. Gulf Coast Natural Gas Co.
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • July 31, 1972
    ...372 S.W.2d 525 (Tex.Sup.1963). In discussing what constitutes competitive bidding, the Supreme Court, in Vilbig Bros. v. City of Dallas, 127 Tex. 563, 91 S.W.2d 336, 339 (1936) 'Two forms of competition may exist. One is secured by calling for bids on only one kind of material for the work,......
  • Walton v. City of Houston, 4582
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • November 17, 1966
    ...of Denton, Tex.Civ.App., 284 S.W. 251, (w. ref.). See also Breath v. City of Galveston, 92 Tex. 454, 49 S.W. 575; Vilbig Brothers v. City of Dallas, 127 Tex. 563, 91 S.W.2d 336, 96 S.W.2d 229. We overrule this contention for reasons hereinafter The record here shows that the city, acting by......
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