230 S.W. 1060 | Tex. App. | 1921
White sued the Peyton Creek Irrigation District of Matagorda county, Tex., a body corporate existing under and by virtue of title 73, chapter 2, of our Revised Statutes, to recover the sums of $1,824.50 and $1,040.80, respectively, for certain work alleged to have been done by him for it on Lake Austin Dam in Matagorda county, claiming the first amount as the balance unpaid under a written contract between them calling for a total of $6,960, and the second
Tbe district answered witb demurrers and denials, general and special, by means of wbicb, in different ways, it was asserted that, not only bad plaintiff failed to complete tbe work in a workmanlike manner and witbin a reasonable time, as be bad. obligated himself to do, but that be bad never completed it at all, and tbe district bad never accepted it. Tbe defendant further answered witb a cross-action against tbe plaintiff and Sutherland and Le Tulle, tbe sureties on bis contractor’s bond, by wbicb it sought to get back $5,075.50 it bad paid White on tbe written contract for tbe work, and also to recover various items of damage it claimed to have sustained by reason of bis negligent and willful failure to reconstruct tbe dam as contracted.
Tbe court sustained exceptions to tbe plaintiff’s claim for tbe $1,040.80 for additional work under tbe verbal agreement, and to all of tbe defendant’s cross-action except so much as sought a recovery of tbe $5,075.50 paid on tbe written contract.
Tbe cause was then submitted to a jury upon these two special issues:
“Question No. 1: Did the plaintiff, John W. White, construct the dam described in plaintiff’s petition substantially in accordance witb the plans and specifications attached to and made a part of said contract offered in evidence ?
“Question No. 2: Did the plaintiff, John W. White, construct the dam described in plaintiff’s petition and fully complete the same within a reasonable time from March 27, 1916, the date of said contract?
“In considering your answer to question No. 2, you will take into consideration all of the evidence introduced in the case, and all the circumstances and conditions incident to the construction of the dam as detailed by the evidence.”
Affirmative answers to botb questions were returned, 'whereupon judgment that tbe irrigation district take nothing on its cross-action against White or bis bondsmen, and that be recover against it tbe $1,824.50 sued for, witb interest, followed. From that decree below this appeal on tbe part of tbe defendant there proceeds.
We do not think tbe objection well taken, but consider tbe petition good as against such a demurrer. In general terms it charged tbe organization, existence, and functioning of tbe appellant under tbe statute; the making and delivery of tbe written contract for the work by it through its then board of directors under attestation by its secretary, and attachment of its corporate seal; the construction and completion of tbe work under tbe direction and supervision of tbe directors by tbe appellee in a workmanlike manner, according to tbe plans and specifications attached to such written instrument, and final acceptance of tbe completed job by tbe district acting by and through these directors after tbe.appellee bad also made some minor changes required by tbe organization’s consulting engineer; part payment to tbe extent of $5,075.50 on tbe contract price of $6,900, and refusal after due demand to pay tbe balance of $1,824.50 was also set up. A count was added, declaring upon tbe above-mentioned and subsequent verbal agreement to pay $1,040.80 more for extras occasioned by tbe development of a leak in tbe dam after tbe alleged completion of tbe work called for in tbe written contract. This was cut out under special exception, and, as no complaint against tbe action is presented here by the appellee, it becomes immaterial.
Tbe written contract as so declared upon was prima facie a valid and binding obligation against appellant, to say nothing of tbe effect of its alleged action thereunder. If any facts rendering it otherwise existed, they were matter of defense that should have been pleaded and proved. Tbe assignment is overruled.
We do not understand paragraph 3 of tbe pleading, to which this exception was directed, to charge that É. B. Wells alone for tbe district accepted tbe work, because its concluding recitation is, “and that tbe said irrigation district acting by and through its directors, accepted tbe said work”; but if that be its import, and if it could further be said to have been error to overrule tbe exception, it became a wholly immaterial one, in view of tbe other parts of tbe pleading, wbicb did clearly charge acceptance of tbe work by tbe district and its board of directors.
Under the statute involved, article 5107, vol. 2, Supp. 1918, Vernon’s Sayles’ Revised Statutes, and particularly sections 69, 70, and 71 thereof, the irrigation district is a quasi public corporation, established for the sole purpose of irrigating in the interest of their owners the lands lying within its territorial limits, and by the express provisions of this law of its creation can only raise such funds as its needs require for current expenses, the running of its plant, etc., by direct taxation of the lands within its bounds; consequently it may not be operated for a profit to itself, and could not legally recover damages for its own benefit for the loss of any rice crops, or revenues from crops, that might have been under its irrigation system, but the right of action in so far as it involved these matters, if any existed, lay in the different owners of the lands who were so using the district’s facilities for the production of rice crops upon their own property.
The main insistence here is that the word “substantially” should have been eliminated, and the jury asked to find whether or not White had constructed the dam “in accord-
We think the court was correct in submitting the issue as one of substantial rather than of exact or strict performance, and that in other respects the charge as given was not only not subject to any of the objections thus made to it, but fairly submitted all the material issues raised by the pleadings and the proof. None in this group of assignments can therefore be sustained.
“The court erred in that part of its decree reading as follows: ‘It is further ordered by the court that the plaintiff be paid, and that the defendant, Peyton Creek Irrigation District, of Matagorda county, Tex., pay plaintiff’s judgment out of the funds provided and secured for the construction of said improvements.’ ”
The ground of this complaint is that no such issue was in the case, that no pleading nor evidence showed that any such fund had been provided for, nor was there any law justifying such an order.
We think a sufficient answer to this suggestion is the fact that by sections 67, 68, and 71 of Vernon’s Ann. Civ. St. Supp. 1918, art. 6107, it was the statutory duty of the Irrigation District to provide a fund for the construction of such improvements as this one was, and, that fact appearing, the court was not without authority to enter such decree as might be necessary to enforce its judgment. The district being a municipal corporation, no execution could issue against it, and without the provision quoted the judgment would have been ineffective.
An affirmance has been entered.
Affirmed.
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