294 S.W. 537 | Tex. Comm'n App. | 1927
Defendants in error have been granted permission to file their second motion for rehearing, the ground for such leave being “that neither of the points adverted to in our second motion has been discussed in the opinion of the Commission of Appeals, * * * for, certainly, every litigant is entitled to have the court reduce to writing its reasons for holding against him.” The points adverted to in the second motion are two in number, and the same points were
Their first point is:
“Because this case was reversed and rendered on account of the admission of parol testimony varying the terms of the warrants sued on when said testimony was introduced in the trial coúrt without objection, no motion to strike same was ever made, no error was ever assigned for its admission, the point was not raised in the Court of Civil Appeals at any time, nor in this court in the application for a writ of error.”
A reading of our opinion will show that the cause was not reversed or rendered on account of the admission of parol testimony,.so that, even though the other facts recited by defendants in error are true, the point of error is not well taken. We reversed the judgments of the trial court and Court of Civil Appeals upon the undisputed evidence bearing upon the issues made under the pleadings. We held, in effect, that, the suit being upon a contract in writing (the warrants) showing upon their face the intention and therefore the contract of all parties, payment should be made out of current funds for the year 1916, and, such contract not being attacked as not speaking the truth of the transaction, that the transaction was not the creation of a debt within the meaning of the Con: stitution involved, and the judgment should be reversed notwithstanding the presence in the record of parol testimony tending to show the parties intended payment to be made from the taxes for future years, which would invalidate the warrants.
It is true that such parol testimony was admitted without objections and that no reversal was sought for its admission. But that is not the question. We have reversed . because we construed the evidence upon the material issues to be undisputed; that is, that this parol evidence was of no probative force whatever, and therefore there is no evidence in the record tending to show that the obligations sued on constituted a debt within the meaning of the Constitution referred to.
In Henry v. Phillips, 105 Tex. 459, 151 S. W. 533, speaking to this point, the Supreme Court said:
“While the admission of this testimony was not objected to by counsel for defendants, that fact would be important only in the event its admission was afterwards complained of as violative of a right reserved to defendants. Such incompetent testimony can never form the basis of a finding of facts in an appellate court, notwithstanding its presence in the record without objection. When the appellate court comes to apply the law to testimony constituting the facts of the case, it can only base its conclusions upon such testimony as is under the law competent. That which is not competent testimony should be given no probative force. The admission of such testimony is no talisman to give effect to that which is irrelevant and incompetent to sustain, or deny a material issue in a case.”
In Southern Surety Co. v. Nalle (Tex. Com. App.) 242 S. W. 197, the holding in which was approved by the Supreme Court, this case and many others are cited to support a restatement of the rule as follows:
“Evidence in itself wholly incompetent, and therefore without probative force, gains no vitality because admitted without objection. It Will not support a verdict by a jury or a finding of fact by a court.”
It is therefore apparent that evidence of this character cannot be relied upon as is here sought to support a judgment either in the trial court or the appellate court. The case stands a.s- though such pretended evidence had not been heard at all so far as the upholding of the judgment is concerned.
Now, our reason for holding this evidence to be of no probative force was stated to be:
“The warrants forming the basis of suit are unambiguous. They promise payment with one exception in February 1917 — necessarily out of the current funds for 1916 and those under the immediate control of the court at the time the contracts were made and the warrants issued. They are not attacked as not speaking the truth of the transaction, and cannot be impeached by the character of testimony relied upon by the Court of Civil Appeals.”
It is replied by defendants in error that such warrants were attacked in the following plea:
“That, at the several times at which plaintiff alleges the warrants herein sued on were issued and were refused, the indebtedness by them evidenced, together with other indebtedness then outstanding against the road and bridge funds of Houston county, as same were constituted and kept, and against the road and bridge fund of Houston county, required a tax greatly in excess of taxes permitted to be levied under, the Constitution of the state of Texas, and that at the time such warrants were issued no provision was made for their payment by the levy of a tax, and it was not contemplated that they be paid out of the.current revenues for the year in .which they were issued or otherwise, and same are illegal and void, and such warrants were not to be paid out of any fund within the immediate control of Houston county at the time of their issuance, and were to be paid out of county funds in future years.”
But this is not an attack on the contracts as made. The warrants upon their face evidence an actual contract payable necessarily out of current funds, and there
The feature of the contract sought to be set aside by parol evidence is not that of consideration which of course is not contractual, but rather it is a contractual feature,— the time, and therefore the funds, for payment. The contract speaks to these points, and so long as it stands, it is final.
Defendants in error’s second point is:
“Because there was much other evidence contained in the statement of facts there being taken from the records of Houston county to sustain the holding below that the obligations sought to be created were not, within the reasonable contemplation of the parties, intended to be paid out of the revenues of the current year.”
What we have said above applies fully to this point. The contention is but another way of saying that the unambiguous contract of the parties for payment out of the 1916 taxes was not a “reasonable contemplation of the parties” and flatly contradicts the writing without, as above shown, avoiding the same for some equitable reason.
The motion for rehearing contains no other ground of error and no other complaint as to the judgment of the Supreme Court. The earnestness displayed therein, however, indicates clearly that counsel have proceeded upon a misconception of the holding recommended in our former opinion. Their anxiety that the oft-repeated rule of practice by the Supreme Court, that it will not reverse a case for errors not assigned, has been violated in this case is without foundation, and their numerous citations of authorities in support thereof is to no effect. We have not applied a rule of practice in this case different from that applied in the cases cited by counsel.
The facts surrounding this case do not show any equities for the county. If there is doubt of the dissolving vice which would have the effect to relieve against the county’s contract and allow it to have something for nothing, under a well-known rule of construction, we should resolve that doubt in favor of the validity of the warrants.
We recommend that the defendant in error’s second motion for rehearing be overruled.