Eastland County v. Davisson , 1925 Tex. App. LEXIS 963 ( 1925 )

On Motion for Rehearing. In our original opinion we only discussed two assignments of error, the same being Nos. 1 and 14, as the dissolution of the injunction was the question presented to this court, and the disposition of the above-numbered assignments of error called for the reversal of the case and dissolving of the injunction, and for that reason we did not think it necessary to further burden the record by discussing other assignments of error, and specially was this true when the cause was yet to be tried on its merits, however, as appellee by his motion for rehearing and appellant in its answer thereto insist up on a further discussion of the questions raised upon appeal, we now think it might be of some assistance, upon the trial of the cause on its merits, for this court to pass upon other assignments of error raised by appellant and not passed upon in our original opinion.

In appellee's lengthy motion for rehearing, he earnestly insists that this court erred in its original opinion, and in addition thereto urges certain equities in his case which we deem advisable to now discuss.

In our original opinion we held that it was necessary for the applicant for injunction based upon contract to allege the elements essential to entitle him to the relief sought with such certainty as to negative every reasonable inference from the facts stated which would preclude the relief sought. Appellee has assailed our holding in this respect. Where a contract, as the one in this case, refers to and makes a part thereof a document, it is necessary for the applicant to place this document before the court for its consideration, or else show by his pleadings and proof that nothing in the document would preclude him from the relief sought. This appellee did not do. After appellant had pleaded portions of the plans and specifications as reasons why the injunction should be dissolved, and offered the same in evidence, the appellee objected thereto. The plans and specifications were a part of the contract and should have been considered by the court as such.

Appellee also assails our holding upon the question of the admissibility of the plans and specifications in evidence. We think the affidavit of Pauline Fisher identified the document as the one referred to in the contract, and should have been admitted in evidence by the trial court.

Appellee contends that he was entitled to injunctive relief under subdivision 2 of article 4643 of the Revised Statutes, which provides:

"Where, pending litigation, it shall be made to appear that a party doing some act respecting the subject of litigation, or threatens or is about to do some act or is procuring or suffering the same to be done in violation of the rights of the applicant, which act would tend to render judgment ineffectual."

We are of the opinion that appellee is not entitled to the writ of injunction under this statute. The evidence does not show such a vested right in the funds as would entitle one to an injunction. The contract by its terms did not give the contractor vested rights in the whole of the bond issue voted by the county, but only so much thereof as was necessary, to build a system of good roads. The contract provided:

"The qualities of work to be done and materials furnished may be increased or diminished as may be considered necessary in the opinion of the engineer."

We are of the opinion that this provision of the contract gave the contractor, at most, only a right to the funds as were necessary to build the roads the county designated to be built. The evidence shows that the original contract was transferred by appellee to Smith Bros., with the consent of the county; that thereafter Smith Bros. completed the work desired by the county under the contract, the work was accepted and paid for by the county, and the contract was terminated as to any future work to be done thereunder. Thereafter Smith Bros. attempted to reassign to appellee any rights they had under the contract. The contract having been performed as stated, no rights remained thereunder to be assigned, and appellee acquired no claim against the county by such assignment. So appellee had no vested right to the funds or any part thereof remaining in the hands of the county.

The record in this case reflects that the appellee only sued for unliquidated damages under the contract and not for specific performance of the contract. The funds in the hands of the commissioners' court are road funds, and cannot be used for any other purpose than the building and maintenance of public roads and highways. These funds could not be used for the purpose of satisfying the claim for unliquidated damages claimed by appellee. Carroll v. Williams, 109 Tex. 155, 202 S.W. 504.

Appellee also urges that no injury can be done by having these funds impounded. We cannot agree with this contention. These funds are public funds, collected for specific purposes, and the public generally is affected. As was said by the court in the case of Craven v. Davison (Tex.Civ.App.) 233 S.W. 872, a case in many respects similar to the one at bar:

"The work here affected was a public one. * * * It goes without saying that the stopping, delaying, or hampering of such a project by the harsh process of injunction would work serious injury to the county, its citizens, and the public generally."

In his last proposition appellee invokes rule 62a for Courts of Civil Appeals, and contends that, had the plans and specifications which were a part of the contract been admitted in evidence, the result of the suit would not have been effected. In other words, it is contended that nothing contained in the plans and specifications would have denied appellee the relief sought. The document contains many pages of typed provisions, and we do not undertake to construe the whole instrument. However, we cannot agree with appellee in the construction of the part quoted in his motion for rehearing:

"No work is to be sublet or assigned by the contractor without the written consent of the engineer."

Appellee neither pleaded nor proved that the purported reassignment from Smith Bros. to him was with the consent of the county or its engineer. Such fact was denied under oath by appellant in its motion to dissolve. It was clearly incumbent upon appellee to show such fact as a prerequisite to his having any rights that might have existed under the contract.

A similar provision in a contract was construed by the court in the case of Craven v. Davison, supra:

"Neither the commissioners' court nor the engineer of the county ever consented in writing or in any way that this work should be done by Mr. Davison, nor was the provision of the state highway department of Texas, that ``no work is to be sublet or assigned by the contractor without the written consent of the engineer and the written permission of the state highway engineer' carried out. This subletting of the work as between Craven and Davison, therefore, never became a legal contract or in any way binding upon Gillespie county."

The motion for rehearing is overruled.

PANNILL, C.J., not sitting.