Wyatt Metal & Boiler Works v. Fannin County

• Citation: 111 S.W.2d 787
• Decision Date: 04 December 1937
• Docket Number: No. 5173.,5173.
• Parties: WYATT METAL & BOILER WORKS v. FANNIN COUNTY.
• Court: Court of Appeals of Texas

111 S.W.2d 787

WYATT METAL & BOILER WORKS v. FANNIN COUNTY.

No. 5173.

Court of Civil Appeals of Texas. Texarkana.

December 4, 1937.

Rehearing Denied December 16, 1937.

Appeal from District Court, Fannin County; Geo. P. Blackburn, Judge.

Action for purchase price of culverts sold, by the Wyatt Metal & Boiler Works against Fannin County. From a judgment for defendant, plaintiff appeals.

Affirmed.

S. F. Leslie, of Bonham, and Malone, Lipscomb, White & Seay, of Dallas, for appellant.

Cunningham & Lipscomb, of Bonham, for appellee.

WILLIAMS, Justice.

This is an appeal from a judgment, tried to the court upon an agreed statement of facts, denying Wyatt Metal & Boiler Works, appellant and plaintiff below, a recovery wherein it sought to obtain judgment against Fannin County, appellee and defendant below, in the approximate sum of $11,000, for culverts delivered by plaintiff and used in the public roads of Fannin County. In a former proceeding appellant sought a writ of mandamus to compel the county auditor to approve this claim, which action is reported in Wyatt Metal & Boiler Works v. Lipscomb, Tex.Civ.App., 87 S.W.2d 331. Being denied such writ, it filed this suit January 2, 1936, grounding its right of recovery upon an order passed by the commissioners' court of said county on June 13, 1932. The parties to this suit will carry here their trial court designation.

On November 17, 1931, Commissioner Wright signed three orders to plaintiff for the purchase of culverts, and likewise orders on November 20th; two on November 22, 1931, January 2, 4, 5, and February 2, 1932. During this same period of time, Commissioners Chandler and Jackson placed a total of fifteen similar orders with plaintiff. The culverts specified in each order which averaged $440 each; were shipped on day following date of same; received and used by said commissioners in their official capacity in the public roads of Fannin County. In April, 1932, plaintiff presented for payment to the county auditor of Fannin county a claim amounting to $10,878.03; being aggregate of the purchase price charged for the materials in the twenty-five orders mentioned above. Upon his refusal to approve same, and after a conference between plaintiff's representative, the county judge and the county auditor, the following advertisement for bids was prepared and published in a local newspaper:

"Notice to Culvert Dealers.

"The County Auditor of Fannin County will receive sealed bids until June 13th, 1932, at 10 o'clock A. M. for Copper Mo-lyb-den-um Iron Culverts. The Commissioners' Court reserves the right to reject any and all bids.

"Smith S. Lipscomb, County Auditor."

Plaintiff and others submitted bids. On June 13, 1932, the date advertised for letting, the commissioners' court awarded a contract to plaintiff which reads in part:

"We, the Commissioners of Fannin County, in regular session, having received bids as result of legal advertisement by County Auditor, Smith S. Lipscomb, on Copper Mo-lyb-den-um Iron Culverts, and having analyzed bids submitted, we hereby award the contract to the Wyatt Metal & Boiler Works, as having submitted the best bid, in keeping with their quotation of June 9th.

"We hereby authorize the Wyatt Metal & Boiler Works to charge to Fannin County, and ship to each County Commissioner, the following culverts, f. o. b., Dallas, Texas, and to prepay the freight and add same to their invoices. * * *"

These minutes then itemized the number, size, and gauge of culverts to be shipped to each of the three named commissioners. The county auditor on September 8, 1932, again refused to approve this claim. Later, at a regular meeting, the commissioners' court allowed and ordered paid this claim of plaintiff, as follows:

"At this term of Court, February 13, 1933, came the Wyatt Metal & Boiler Works, Dallas, Texas, to have heard their claims for corrugated metal culverts purchased by the following Commissioners:

                "T. E. Wright ............... $4,692.37
                "M. E. Jackson .............. $1,573.25
                "C. B. Chandler ............. $4,742.00
                

"It was moved by M. E. Jackson, seconded by C. B. Chandler that the above bills be allowed and paid in keeping with this Court's purchase June 13, 1932, which is a matter of record and the method and way that meet with the approval of the Wyatt Metal & Boiler Works, Dallas, Texas, further that the County Auditor be instructed to issue checks or interest bearing warrants in payment of the above bills and Treasurer of Fannin County is hereby authorized to register and pay the above account."

Plaintiff, after pleading in detail all the foregoing, then alleged: "Your plaintiff would show that by the acts and conduct of the Commissioners' Court of Fannin County and by the orders hereinabove alleged which it passed, and by its continued acceptance and use of said culverts so shipped to it as hereabove set out, said Commissioners' Court has in all things ratified and confirmed the transaction hereinabove alleged from its inception and said county is now bound to pay this plaintiff the agreed prices for said materials hereinabove set out, which said agreed prices are and were the reasonable market values of said materials in Fannin County at the times hereinabove alleged."

Plaintiff prayed for judgment for the purchase price of the culverts, with interest from August 1, 1932, and, in the alternative, if not entitled to recover the agreed purchase price, and if the county was not bound by the contract or by the ratification, that it recover judgment for the rental value of same at rate of $200 per month. Plaintiff, in its brief, concedes that the sales upon the individual orders of individual county commissioners, without any previous authority of the commissioners' court and without statutory advertisement for bids were void. Plaintiff offered no testimony as to the reasonable market value of said material in Fannin County and offered no evidence on the rental value of these culverts. It abandoned its alternative plea in the trial court, and assigns no error based upon this feature of the case.

Plaintiff contends that by virtue of its bid or offer of June 9th and the commissioners' court action of June 13th accepting same, it is entitled to recover upon a written contract for the amount of the contract prices. The trial court filed what is termed findings of fact, among which are the following:

"I find that the action of the Commissioners' Court and the plaintiff and its representatives were fraudulent, and was an attempt to perpetrate a fraud upon Fannin County, the purported contracts not being made in good faith but with a fraudulent design.

"I find that the offer of plaintiff dated June 9, 1932, to furnish the material in controversy, was never complied with.

"I find that the bid of the Ft. Worth Tank & Culvert Company, offered in evidence, was made in good faith and that said...