Wright v. Jones

• Decision Date: 08 May 1909
• Citation: 120 S.W. 1139
• Parties: WRIGHT et al. v. JONES et al.
• Court: Texas Court of Appeals

120 S.W. 1139

WRIGHT et al. v. JONES et al.

Court of Civil Appeals of Texas.

May 8, 1909.

Rehearing Denied June 5, 1909.

Appeal from District Court, Jones County; Cullen C. Higgins, Judge.

Action by George Wright and another against C. C. Jones and others. From a judgment sustaining special exceptions to the petition and dismissing the suit, plaintiffs appeal. Reversed and remanded.

A. H. Kirby, for appellants. Beall Bros. & McDugald and L. B. Allen, for appellees.

DUNKLIN, J.

George Wright and Lee Glasscock instituted this suit against C. C. & E. H. Jones, as contractors, and the other defendants, as their sureties, to recover for an alleged breach of contract entered into by C. C. & E. H. Jones with plaintiffs as a building committee acting for and in behalf of the board of trustees of the McCauley independent school district of McCauley, Tex., said contract being for the erection of a public school building in the town of McCauley according to certain plans and specifications for a stipulated price to be paid by plaintiffs. Plaintiffs alleged in their petition that they were members of such board of trustees, and that the suit was instituted by them as such building committee for the use and benefit of said board of trustees, and also for the use and benefit of all persons who have furnished labor or material for the erection of said building and who have not received payment therefor, and the basis for their suit against the defendants other than the contractors C. C. & E. H. Jones was a bond executed by such other defendants, but not by the contractors, in favor of plaintiffs for the faithful performance of the building contract by the contractors. The defendants urged certain special exceptions to the petition which were sustained, and, plaintiffs declining to amend, the court dismissed their suit. From such rulings of the court plaintiffs have prosecuted this appeal.

The special exceptions sustained by the court were as follows:

First. That the contract sued on was invalid for the reason that the board of trustees could not legally delegate to plaintiffs as a building committee authority to bind the board thereby.

Second. That the petition failed to allege authority from the board to plaintiffs to enter into the contract or to accept the bond.

Third. That the petition failed to allege authority from the board to plaintiffs to maintain the suit for the use of the board, and that, in the absence of a delegation of such authority, the suit could not be maintained by plaintiffs for and in behalf of the board.

Fourth. That the bond was invalid because not accepted by the board, and because not signed by the contractors.

Fifth. That there was no authority under the law for the prosecution of the suit for the use and benefit of those who had furnished material or labor for the erection of the building and who had not received payment therefor.

Chapter 124, p. 263, Acts 29th Leg. 1905, provides for the formation of independent school districts, the election of trustees therefor, prescribing their powers and duties, and section 84 of the act, which relates to the erection of public school buildings, reads as follows: "The trustees of such school district shall contract for the erection of such building and superintend the construction of the same, and the county superintendent shall draw his warrant or warrants upon the school fund so appropriated only upon the accounts first approved by them." Section 162 of the act provides for the election of seven trustees, and section 165, in part, reads as follows: "The trustees chosen under this act shall meet within twenty days after the election, or as soon thereafter as possible, for the purpose of organizing. A majority of said board shall constitute a quorum to do business; and they shall choose from their number a president; and they shall choose a secretary, a treasurer, assessor and collector of taxes, and other necessary officers and committees." * * * By the terms of this statute it is clearly within the powers of the board to appoint necessary committees, and the discretion to determine when the necessity exists for such committees is manifestly vested in the board; and we can perceive no valid reason why such a board cannot lawfully appoint a building committee to let the contract previously authorized for the erection of a school building, to take a bond for the faithful performance of the duties of the contractor, and to perform such other duties incidental to the completion of the building....