*1 CITY OF CO. v. CONST. PANHANDLE SPEARMAN. 4509.
No. Appeals Amarillo. Texas. of Civil
Court 18, 1935. Nov.
Rehearing Jan. Denied Lubbock, Sowder, ap- A. Robt.
pellant. Amarillo, Scott, & Sanders pellee. *2 HALL, city favor of $349, Chief the for the sum of with Justice. cent, interest per per thereon at annum appellant, city sued the Spearman of 1, from September the Company, to recover Construction to 7,880 alleged yards of caliche value of The defendant offered in the evidence yard, per 10 cents cubic be of the value of deposition of Montgomery, who Julian removed city had been claimed the* testified that his firm had been selected by appellant the owned from land which it engineers by city Spearman the of pre- to the knowledge and consent of the without pare plans specifications and supervise and the. work paving project for the involved: that he was shown caliche beds near the if appellant answered that it entered city by one of officers its con- before the oity it upon belonging to the the lands present tract was let and was when the con- of knowledge and consent was with the tract by city; was let the that he discussed city, agreement an under that city officers of the whether or not of free pellant the caliche should have caliche would be furnished free of oost city to endeavoring was charge; that the city’s from the beds to be used in doing the improvement the paving let contracts for work; that this discussion streets, was with the and of certain defendant was of its city manager mayor when the present; was bidder; city prospective that the caused that had informed previous he the bidders that caliche defendant to be informed the to th'e filing city of their bids that the performance (a necessary material would make charge no free, caliche used of work), be furnished the would from its in beds the work. In cost, need not and that defendant consider interrogatory, answer to one he testified: making caliche in its the value the “On the afternoon of March acting upon That this infor- estimate. City Spearman, Hall City in Sampson, Mr. by mation, reduced defendant its bid the Manager, discussed with allowing contractors to the item, me matter and used caliche the cost of such the consent; caliche use from knowledge plaintiff’s and city the charge. bed free of I do not re- accepted plaintiff that and received the Sampson’s member Mr. exactly, bid, words and that benefit of the reduced knew but he stated in following: substance the using defendant was such material with- City ‘That the desired to pave- obtain the any expectation paying out therefor. ment cheaply possible to the specifications plans provided That and the property owners, and for notify, me to the city in engineer charge that the of the work City contractors that willing the would be accounts
'should allocate the
for them to obtain
City’s
from
caliche
the
parties, which
and that
the
was
charge.’ My
beds free of
is
recollection
engineer
nothing
charged
to
defendant
the
that
Sampson
Mr.
and Mr. Cooke (the
on account of
use of such
the
material.
Mayor)
present
were both
at this conver-
appeal from
That there was
the decision
sation.
I do not remember that
oity
city
Mr. Cooke
engineer,
and therefore
the
the
had anything
add
to
to Mr.
successfully.
Sampson’s
could not maintain the suit
statement.”
by
He was further
The fact
the caliche was
asked whether
that
taken
any
by
there was
discussion
knowledge
city
the
the
the
defendant with
and
officers
respecting the
city,
upon
use
the
sent of the
and
the
caliche when
solicitation
the
opened,
said,
bids
city,
through
duly
“Yes,
were
and he
acting
its
author-
but
clearly
I
agents,
do not
pleaded
ized
recollect
the
officers and-
was
details of the
in
discussion,
estoppel
city’s right
but it was
to
substance
recover in
successful bidder could
City’s
action.
use the
this
City’s
from the
beds
caliche
free
further alleged
The defendant
if
generally
This
by
was
discussed
City
provide
the contract did not
that it should
present
officials who were
at the time the
charge,
free of
have the caliche
opened.”
bids were
provision
was omitted therefrom
mutual
mistake,
permit
to
Moxley
R. D.
testified that
filed the
he
unjust,
be
to recover herein would
un-
upon
defendant’s bid
which the contract
equitable,
and amount to a fraud
de-
awarded,
figure
did not
cost
fendant.
city
the caliche because
engineer
city
had told him the
would furnish it
case was tried
the court without
of cost.
free
jury.
the intervention
aof
findings
The court filed
of fact
and con-
The defendant also offered the
law,
judgment
clusions of
and rendered
in óf
Tungeln
L. Von
who
he
testified that
J.
engineer
representing
charge
adjust
shall
ac-
ground
man on the
was the
contractor,
counts
Mayor
city
between
defendant,
and was told
adjust
get and that
manager,
engineer
did
city
such ac-
Sampson,
counts and
anything
that noth-
failed
find
in favor
city’s pit,
from
caliche
used,
*3
for of the
paying
for the value of the caliche
him about
ing was ever
to
the
that
contention was
the
it.-
concluded
contract,
terms of the written
and the trial
agree
that this
allegation
the
Under
court
in-
holding
erred in
otherwise is an
by mutual mistake
was omitted
ment
supported by
sistence not
the record.
subsequently
.contract
written
from the
entered
out,
For the
pointed
judgment
errors
the
clearly
testimony was
into, this
reversed,
is
and the
is remanded.
cause
excluded
admissible,
court
and
the
because
not consider
he did
it,
assume that
must
we
it for
On
Rehearing.
Motion for
838, par.
any purpose. 17
Tex.Jur.
Co. v.
380;
& Oil
Coal
Texas Pacific
appellee
The
we
insists that
erred in hold-
835;
249 S.W.
(Tex.Com.App.)
Crabb
ing that
judge
the action of the trial
Brawley (Tex.Civ.App.)
v.
Middleton
excluding
certain
of
Mont-
Julian
v.
257; City of Mission
(2d)
12 S.W.
gomery constituted reversible error.
(Tex.Civ.
Mfg. Co.
Fire Hose
Eureka
Montgomery
by deposition
testified
that
(2d)
S.W.
App.) 67
engineer,
he was a
and
civil
his firm
rule is established
city
The
employed by
Spearman
been
the
had
to
of
into a con
entered
municipality
prepare
specifications
which has
plans
and
for cer-
make
lawfully
cannot
paving
that it could not
superintend
tract
tain
be
and
to
to
upon the
for its breach
liable
prior
held
the work.
had
to
be
He
testified that
equally
is
well
estoppel,
it
of
but
ground
receiving
the time of
he
bids
had discussed
may
estopped to
city
be
that a
question
city
established
the
to
officials
it
validity
which
deny
of a contract
city
furnish,
the
whether the
of
would
free
ex
make,
which was
authority to
but
charge,
had
to the successful bidder caliche
authority, was
by an officer without
ecuted
from certain
that material owned
beds of
required formal
the
into without
entered
ities,
the
He stated that
dis-
he had
records of the
where the
city
and even
Sampson,
it
manager,
cussed with
a contract was
that such
city
Cooke,
do not show
mayor,
9, 1931,
the
on March
accepts
city
per
into. If the
city
entered
Spearman,
ever
hall in
and that he had in-
enjoys
party
from the other
previous
formance
all
to
filing
formed
bidders
the
of
therefrom, it is
it
accruing to
city
benefits
the
bids that
the
would make no
their
imposed
obligations
perform the
to
charge
bound
for the use of its
he
caliche. Then
contract,
by the
and where
con
upon it
the
asked
was
versation
to state the substance of the con-
executed, an action will not
been
has
tract
he
with the officer or officers
paid
compensation
to the con
recover
city
to
previous
lie
tractor.
of the
the opening
to
City Corpus
Christi v.
respecting
caliche,
bids
to state
the use of the
Johnson
865;
(2d)
54
McKen
S.W.
(Tex.Civ.App.)
party pres-
what was said
each
Antonio
City
(Tex.
v.
Co.
San
zie Const.
ent.
349; City of Port
Civ.App)
(2d)
50 S.W.
objection
The
made to this
that it was
is
Young
37
(Tex.Civ.App.)
S.W.
Arthur v.
immaterial and irrelevant and
serves
385;
of San
Citv
Antonio
Sluder v.
(2d)
purpose
lawsuit,
whatsoever
the
that it
841; City
(2d)
(Tex.Com.App.)
S.W.
express
the
terms of
varied
the contract
Keeney
(Tex.Civ.App.)
v.
Texarkana
entered into between the construction com-
W.
S
.
pany
city,
plead-
the
and there were no
support
ings
admissibility
any
to
the
trial,
of another
it
not
In view
is
-
answer.
weight
to
the
the
for us
discuss
proper
testimony upon
issues as to
number
question and answer
were excluded.
of caliche used
value
yards
follows :
answer is as
“On the after-
been
There
to have
a con
seems
thereof.
9, 1931,
City
in Flail
noon of March
issues,
upon those
in the evidence
flict
Texas,
Sampson, City
Spearman,
Mr.
at
jury
to
prerogative
is the
me
Manager,
the matter of
discussed
from
any suggestion
this
without
settle
from
allowing
contractors
use caliche
court.
City’s
I
charge.
free of
do
beds
exactly,
Sampson’s words
proposition,
Mr.
by which
remember
tenth
it is
following:
in substance
provides
he stated
because the
that but
insisted
contract
just
City
pave-
inequitable
obtain the
That the
desired to
and amount to a fraud
cheaply
possible
property on
ment
to the
this
defendant.”
owners,
notify
and for me to
the contractors
exception
No demurrer
urged
or
City
them to
willing
would be
any part of
pleadings,
and we think it
City’s
obtain
free
caliche from the
beds
sufficient,
circumstances,
is
under such
My
that Mr.
recollection is
when
allegations,
considered with other
Sampson
present
and Mr.
were both
show
knew that the de-
at
that Mr.
I
recollect
this conversation.
do not
caliche,
fendant was using
that it was
anything
Cooke had
to add to Mr.
consent,
taken with its
and that it had been
Sampson’s statement.”
induced to enter into the contract at the
By
question Montgomery
price
was asked
named
the work
representations
if there was
of-
discussion
charge
that no
would be
*4
fices,
opened, among
or where the bids were
made for
might
whatever caliche
be used.
officers, Cooke, mayor,
Commissioners When considered
allegations
with
in
McLain,
city manager plaintiff’s
Foote and
petition
to the effect
the ma-
secretary, respecting
the use of the terial
consent,,
was taken
city’s
without the
caliche and
pleading
the conditions under which it
the
mony
was sufficient to admit testi-
bidder,
might
by
be used
the successful
and
and
showing
provision
that the
was left
fully
state
by
what such discussion was
out of
mistake,
the contract mutual
even
participated
objec-
who
therein. The same
though the
upon
action had been based
urged
tion was
and the court sustained the
petition
contract.
sidered
answer,
The
objections
testimony.
together,
to all this
contain
allega-
sufficient
testimony
tions to admit
part
on the
of the
objection
testimony
The
was
o,f
purpose
defendant for the
showing that
immaterial and
and serves no
irrelevant
induced,
it
by
was
representations
pre-
purpose
is,
whatsoever in the
in ef
lawsuit
viously made, to reduce its bid.
fect,
objection
which the court could
consider.
inducement,
Matters of
if fraudu
lent, do not come
parol
within the
evidence
objection
The
that
contract
varied the ex
it
rule,
pleaded
and the facts
are sufficient to
press terms
into
of the
entered
equitable
show an
estoppel.
parties
should
have been
sustained for several reasons.
In the first
The record
shows that the
had
place,
upon
was not
suit
based
con
The con
testimony
introduced
to the effect-that none
nor
tract
tract had been executed
a breach
thereof.
of its officers had
appellant
authorized the
by
parties,
both
to use the caliche free
This was
performed by
the work had been
the con
support
city’s
offered in
allegation
company,
paid
struction
had
in
been
the material had
wrongfully
been
full for
its services.
action was
This
taken.
brought to recover the value of the caliche
It is a fundamental rule that either
alleged
which it is
the construction com
party
is entitled to introduce
pany
wrongfully appropriated
to its
by
adversary.
rebut evidence-introduced
his
knowledge
own use without the
and con
Carothers,
21;
Markham v.
47 Tex.
Fer
sent of the
guson
(Tex.Com.
Seed Farms v. McMillan
sufficient,
pleading
The
1009;
(2d)
App.) 18 S.W.
63 A.L.R.
exceptions,
absence
admit the testi
(Tex.Civ.App.) 81
v. Prather
S.W.
Oakes
mony.
company alleged:
The
“This de
Lee,
557; Rodriguez v.
appellee brought suit in the district court season, county, due to set aside the award the board. made pertinent allegations of the answer filed cross-action Mrs. Liles Ada are: CO. ÆTNA LILES et v. LIFE INS. al. long prior “3. for a time That to the 14th No. 13264. day June, 1933, the said H. A. Liles had hernia, commonly had a rupture, called Appeals Fort Court Texas. Civil was not compensable the result of Worth. *5 injury but awas condition that he was af- 22, Nov. 1935. with, flicted notwithstanding which he work, during continued to the time that he Rehearing Denied Jan. employed Whaley the said Mill & superintendent Company Elevator of its Gainesville; mill at that the said hernia of, cases, consisted is usual in such an enlargement, stretching or torn condition of canal, inguinal thereof, and the rings forming connecting passage scrotum; lower on abdomen date, towit, or about the aforementioned Liles, 1933, the said H. A. while June performance of -his usual duties as mill, superintendent of the occasion lifting do some of sacks of material and that in and effort the strain lifting some contents of his lower abdomen, towit, part some of the intestine through inguinal opening was forced scrotum; and into the amount of pressure the intestine and with which through opening was forced and the natural muscular strain contraction up inguinal region thereafter set produced condition sometimes referred to a say, that is strangulation, as a the in- pinched pass and would testine was not abdomen, normally back where it into operation; an belonged without that the of the Dallas, Johnson, Houston & protrusion of such immediate effects pellants. strangula- intestine to the scrotum and the Wren, Jeffrey, Worth, Pearson & Fort profound a in- tion thereof were shock and appellee. pain; place this occurrence tense took leaving- employ- hour of regular near the BROWN, day Justice. said H. A. Liles ment for the Appellants, immediately daughter taken home his Ada Liles and her minor was . Louise, physician daughter, was called made claim the in an automobile before Board, him; strangulated surviving Industrial Accident attend be relieved without daughter, respectively, wife of H. an A. dition could