Wright v. Jones , 55 Tex. Civ. App. 616 ( 1909 )

George Wright and Lee Glasscock instituted this suit against C. C. and 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. and 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, Texas, 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. and 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; and,

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.

Section 124, Acts of Twenty-ninth Legislature (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 can not 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. (Hitchcock v. Galveston,96 U.S. 341, 24 L. ed., 659; Kramrath v. City of Albany, 28 N.E. 400, 28 Cyc., 648.)

Plaintiffs alleged in their petition that defendants C. C. and E. H. Jones also agreed to furnish a bond with good and sufficient sureties for the faithful performance of the contract to erect said building, and that in compliance with such agreement they, together with the other defendants as sureties, did execute and deliver a bond payable to plaintiffs, wherein they "bound themselves unto the plaintiffs, and unto their successors as a building committee, duly authorized by and acting for the board of trustees of McCauley Independent School District of McCauley, Fisher County, Texas, in the sum of five thousand dollars," etc. The following language used in the above quotation from the petition, "duly authorized by and acting for the board of trustees of McCauley Independent School District," is treated by defendants merely as a recital in the bond, but with that contention we do not agree. The petition does not allege that the bond so recited, and we think the language last quoted should be construed as an allegation that the acts of the plaintiffs, in entering into the contract with C. C. and E. H. Jones and in taking the bond sued on, were duly authorized by the board of trustees. With such an allegation we do not think plaintiffs were required to allege that the bond was accepted by the board of trustees as well as by the plaintiffs.

We are further of the opinion that the suit could be maintained by plaintiffs for the use and benefit of the board of trustees of the McCauley Independent School District, as the contract and bond were expressly with plaintiffs as the building committee, thus vesting in them the legal title to such cause of action as might arise in favor of the school district, which in any event would be the sole beneficiary. (The Texas Western Ry. v. Gentry, 69 Tex. 631; Ward v. Hubbard, 62 Tex. 559; De Cordova v. Atchison,13 Tex. 372; Texas Pac. Ry. v. Levine,29 S.W. 514, and authorities there cited; Mechem on Agency (2d ed.), secs. 754-755; 15 Am. Pl. Pr., 484-489, notes; 5 Cyc., 820.)

In the case of Railway v. Gentry, supra, a judgment was affirmed in favor of one who held the legal title to certain choses in action, while the equitable title to same was in other persons, and in the opinion the following language was used: "But it is well settled in this State that the holder of the legal title of a chose in action may bring suit upon it in his own name, although the equitable right may be in another." The bond created no liability on the part of C. C. and E. H. Jones additional to that created by their execution and delivery of the contract to erect the house; and besides, plaintiffs alleged in their petition that the bond was delivered to plaintiffs by the contractors as well as by the sureties. The failure of the contractors to sign the bond did not relieve the sureties who had signed and delivered it with the intention of being bound by it. (San Roman v. Watson,54 Tex. 259; Houston T. C. Ry. v. Lockhart, 39 S.W. 321; Cockrill v. Davie, 35 P. 958; Eureka Sandstone Co. v. Long,39 P. 46, 5 Cyc., 741.)

But we are of the opinion that plaintiffs could not maintain the suit for the use and benefit of those who had furnished labor or material for the erection of the building as there was no privity of contract between such persons and the defendants, and by section 85 of the Act of 1905 above referred to such persons are expressly denied a mechanic's or material-man's lien both on the building and on the lot upon which it is erected. (Jones Lumber Co. v. Villegas, 8 Texas Civ. App. 673[8 Tex. Civ. App. 673]; Santleben v. Alamo Cement Co., 25 S.W. 143.)

The judgment of the trial court is reversed and the cause remanded for trial in accordance with the views above noted.

Reversed and remanded.