CITY OF MISSION v. EUREKA FIRE HOSE MFG. CO.
No. 9163.
Court of Civil Appeals of Texas. San Antonio.
Nov. 8, 1933.
Rеhearing Granted Jan. 4, 1934. Further Rehearing Denied Jan. 31, 1934.
67 S.W.2d 455
This ruling seems not to be in harmony with Delaware, etc., Ins. Co. v. Brock, 109 Tex. 425, 211 S. W. 779, and Fire Ass‘n, еtc., v. Strayhorn (Tex. Com. App.) 211 S. W. 447.
But American Central Ins. Co. v. Terry, supra, is the latest expression of the view of the Supreme Court with reference to the necessity of proof of loss in the cаse of a house totally destroyed by fire, and we feel impelled to follow this last expression of the Supreme Court, as the Amarillo Court did in Security Ins. Co. v. Vines (Tex. Civ. App.) 48 S.W.(2d) 1017.
The record does not disclose when plaintiff in error denied liability (see Delaware, etc., Ins. Co. v. Brock, supra), and no proof of loss being necessary, interest should run from the sixtieth day after the loss. East Texas, etc., Ins. Co. v. Brown, 82 Tex. 638, 18 S. W. 713, and Delaware, etc., Ins. Co. v. Brock, supra.
The judgment will be corrected in this respect and affirmed.
The amount involved by such correction is small. It should have bеen called to the attention of the trial court in the motion for new trial. If this had been done, the correction would doubtless have been made in that court. The costs of the appeal will therefore be taxed against plaintiff in error.
Corrected and affirmed.
W. R. Blalock, of Mission, for appellant.
Kelley, Looney & Norvell, of Edinburg, for appellee.
FLY, Chief Justice.
This is an action for money alleged to be due on two contracts by the appellant to appellee. The contracts for the purchase of the hose were attached to and made part оf the petition. The cause was tried before the court, without a jury, and judgment rendered for $1,499.10, together with interest from the date of the judgment, December 14, 1932.
It is not dеnied by appellant that the hose described in the petition was furnished by appellee to appellant, and no complaint is made of the kind оr quality of the hose furnished, and the evidence tends to show that it was received and used by the appellant. Payment of the amount due for the hose was sоught to be evaded on the plea that the contracts were not authorized by appellant and were not executed by any officer who had thе right and power under the charter to execute such contracts. The statute of limitation of four years (
The evidence indicates that during all the years that the hose was in the possession of appellant it was used for the purposes for which it was manufactured and for which it was sold, and justice, equity, and good consciencе would demand the payment by the city for the value of such hose. We are of the opinion that the acknowledgment in writing, by the mayor, of the receipt оf the hose and its use by the city, was sufficient to suspend the running of the statutes of limitation and would bind the city in connection with its appropriation of the hose. Thе acknowledgment was an unqualified notice that the city had received the hose, and that it intended and promised to pay for the same.
Municipalitiеs should be and are compelled to act with some degree, at least, of honesty and uprightness in their dealings with the public, and should not be permitted to evade payment of their obligations on bare technicalities, when they have received full value from the commodities furnished them. This position is fully sustained by thе Commission of Appeals and adopted by the Supreme Court in the case of Sluder v. City of San Antonio, 2 S.W. (2d) 841, 842. In that case it was held: “Since the decision in the French Case [80 Tex. 575, 16 S. W. 440, 26 Am. St. Rep. 763] our courts have uniformly announced the doсtrine that where a county or municipality receives benefits under a contract, illegal because not made in conformity with the Constitution or statute оf the state, or charter provision of the city, it will be held liable on an implied contract for the reasonable value of the benefits which it may havе received. In other words, while such contracts are void, and no recovery is permitted thereon, our courts hold that common honesty and fair dealing require that a county or municipality should not be permitted to receive the benefit of money, property, or services, without paying just compеnsation therefor. Under such circumstances, a private corporation would clearly be liable under an implied contract. There can bе no sound reason why the same obligation to do justice should not rest upon a municipal corporation.”
We indorse this declaration, and, applying it in this case, we overrule all of the propositions of appellant, and affirm the judgment of the lower court.
On Motion for Rehearing.
The petition in this case declared upon express contracts executed by officers of the municipal corporation. The contracts were alleged and proved to be in writing, neither of them shown to have been executed by the governing body of the municipality, one having been executed by the fire chief and the other by the mayor. There being no express contract binding upon the city because not executed by its authority, it could only be held liable on an implied contrаct arising from the fact that it had accepted and used the hose sold to its unauthorized officers. The proof showed that the hose had been ordеred by the fire chief and mayor and had been for years used by the city, no protest having ever been uttered against the purchase of the hose. The hose should have been paid for by the city, and the cause should not have been allowed to be sued upon in the courts of the county. But in spite of these facts this court is bound to uphold the rule provided for in the trial of all cases, and that is the allegations and proof must correspond. The petition hаving declared upon an express contract, appellee could not recover upon an implied contract, because the proof necessary to establish the latter is altogether different from that required to establish the former. It follows that the question of implied contract can have no force or effect in the decision of this case, and, that being the condition of affairs, appellee has failed to establish а cause of action. There being no basis for a recovery on an implied contract, it follows that there could be no basis for holding that the offiсers had the implied authority to waive limitations. The evidence established limitations in both instances.
Because there were no allegations that were supported by facts to sustain a judgment in favor of appellee, the motion for rehearing is granted, the judgment of the lower court is reversed, and judgment here rendered that appellee take nothing by its action.