Gano v. Palo Pinto County , 71 Tex. 99 ( 1888 )

Gaines, Associate Justice.

The appellants brought this suit in the court below. Upon a former trial they obtained a judgment, which was reversed on appeal upon the ground that the court erred in overruling the demurrer to the petition. (Palo Pinto Co. v. Gano & Sons, 60 Texas, 250.) After the cause was remanded to the district court the plaintiffs amended their petition. Upon the second trial a demurrer was sustained to the amended petition and the suit dismissed.

In the former opinion it was held that the contract made between the commissioners court of Palo Pinto county and Veal, Haynes & Caruthers, by which the latter were employed to subdivide, map and classify the school lands belonging to the county, and which is here sued upon, was an agreement for the performance of services involving a personal trust in the agents or contractors, and that, therefore, they could not perform the work through subcontractors so as to bind the county. The amended petition seeks, by additional allegations, to avoid the effect of that ruling. The additional averments, briefly stated, are that when the contract was entered into with the commissioners court they knew that Veal, Haynes & Garuthershad no personal fitness to perform the work; that they, expected to employ competent persons to do it, and that they were employed Avith that understanding, but that by inadvertence in entering the order upon the minutes of the court the clerk made a mistake and omitted so much of the agreement as authorized the contractors to employ substitutes. It is also alleged, “that it had long been the custom in the State of Texas, when similar contracts were made by counties to have their school lands surveyed, classified and mapped, for the party contracted with to employ competent parties to do the work, even where no express authority to do the work [was] given in the contract with the county.”

The order of the court is sued upon as a written contract and a copy of it is annexed to the petition as the foundation of the action. The plaintiffs can not be permitted to prove simply that there was an understanding between the commissioners and the contractors that they should employ sub-contractors, because this would be to introduce oral evidence to vary a written contract. Are the allegations sufficient to admit of a correction of the writing on the ground of mistake? We think not. In order to reform an instrument for a mistake so as to x embody in it additional terms and enforce it as reformed it must be alleged and proved that the instrument does not express the terms of the contract as agreed upon, and that both parties were ignorant of the omission at the time it was executed. It seems to us it was the duty of Veal, Haynes and Caruthers to look to the order as actually entered before beginning the discharge of the work, and if the contract, as set forth in the entry, was not in accordance with the terms-of their offer to decline to proceed until it was properly corrected. The commissioners court is a court of record and speaks through its minutes and not by the mouths of the members of the body. The proper method to amend the minutes when they fail to speak the truth is by a motion made in that court and not by allegation and proof in another tribunal in which a litigation concerning its orders may arise. This court has held that the order of the directors of a corporation entered upon the minutes of their proceedings if intended as an agreement is itself a written contract. (Railway Company v. Gentry, Galveston term, 1888.) The order of a commissioners court may, in like manner, constitute a contract, but it does not follow that the proper mode to reform it is not by a motion in the court where entered to correct the minutes so as to represent truly the order as actually passed by the body.

We are also of the opinion that the allegations of a custom among the commissioners courts of the several counties in the State are not sufficient to make such custom a part of the contract in this case. We think it the duty of these courts, to select themselves such agents as may be necessary to assist them in the discharge of their functions, when such agents have necessarily to exercise judgment and discretion in the performance of the work assigned them. The duty of Making such selection should not be delegated. Such a custom would therefore be unreasonable, and upon that ground should not be held binding upon such of these courts as have not expressly authorized their agents to employ substitutes. But it is not alleged that the custom was known to the commissioners court of Palo Pinto county. If there could be a usage among these courts, such as might be presumed to constitute a part of a contract with one of them (which we seriously doubt), it Would seem that such usage would not necessarily be known to every other court of the same character; and, that in order to bind another court, it should be alleged and proved, that the custom was known to it.

We conclude, that the court did not err in sustaining the demurrer to the petition and in dismissing the suit; and the judgment is therefore affirmed.

Affirmed.

Opinion delivered June 1, 1888,