273 S.W. 795 | Tex. | 1925
Relator seeks a mandamus against respondent to require him to do and perform the ministerial or statutory duties which it has a legal right to have performed in regard to its contract with the State of Texas for the purchase of certain textbooks, to-wit: Fourth Reader, Fifth Reader, and Sixth Reader, each by Free and Treadwell, and Seventh Reader, by Briggs.
The facts of this case case in all essential particulars are the same as those contained and stated in the case of Laidlaw Brothers, Inc., v. S.M.N. Marrs, State Superintendent of Public Instruction, opinion delivered June 8, 1925, with one exception.
In the instant case the relator, as provided by the statutes, filed with the State Textbook Commission what is termed its anti-trust affidavit. Said affidavit was in statutory form and signed by all of its directors, but one of its said directors (a Mr. Cousins) had executed it through his attorney and agent in fact, and not personally. *579
In passing on relator's contract the Attorney General called this fact to the attention of the State Textbook Commission. Thereupon, by resolution, the Commission instructed respondent, Marrs, as Secretary of the Commission, to hold relator's contract and bond until said director came to Austin and in person made the affidavit. Said director forthwith came to Austin, executed the affidavit in person, and the contract was delivered.
Respondent makes the defense that these acts constituted such
an irregularity in the steps required by the statutes, preliminary to the making of relator's contract, as to invalidate it. It would appear that the objection is without substance; but if not, the action of the State Board of Education on January 12, 1925, adopting the contract and directing respondent to observe it, had the effect to waive the irregularity and make the contract effective and enforceable. Charles Scribner's Sons v. Marrs,
The principles of law announced in the case of Laidlaw Brothers, Incorporated, v. Marrs, State Superintendent, opinion delivered June 8, 1925, (
Writ of mandamus ordered issued. *580
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Lewis Bros. v. R.E.L. Johnson, Sixth Dist.,
"Amount involved not sufficient to give the court jurisdiction, the interest prayed for being interest eo nomine."
M.L. Allen v. Mack Comoras, Fifth Dist.,
"Application filed more than thirty days after the overruling of motion for new trial. See Long v. Martin,
Business Mens Oil Co. v. Priddy, Fourth Dist.,
"See McGouirk v. Williams, and other cases by Com. of Appeals, approved March 21, 1923."
Early-Foster Co. v. Calvin D. Moody, et al., Fourth Dist.,
"We have not considered the question of fundamental error for the reason that it was not raised in the motion for new trial in the Court of Civil Appeals."
James C. Davis, Agent, v. C. Christenson, First Dist.,
"We think there was evidence authorizing the submission of the issue as to the injury being caused by the rope."
J.E. Yeager v. Mrs. A.B. Bradley, Third Dist.,
"We think the judgment of the Court of Civil Appeals is correct, whether the orders in the administration be voidable or void."
John T. Spann v. C.W. Tate, Fifth Dist. No written opinion. Dismissed for want of jurisdiction June 12, 1924.
"See Southern Pac. Ry. Co. v. Hass,
E.V. Altman v. C.B. Brown, Eighth Dist.,
"See Decker v. Kirlicks,
H.A. Long v. M.E. Martin, Seventh Dist.,
"See Art. 1521, Vernon's Sayles' Stats."
J.B. Cochran v. Mrs. Ethel Pierce Lloyd, Ninth Dist.,
"Regardless of the correctness of the ruling as to the sufficiency of the petition as against a general demurrer, the case was properly remanded for a new trial." *582
Carrie E. Adams v. A.N. Adams, Ninth Dist.,
"Dismissed w.o.j. We do not think the Court of Civil Appeals intended to hold that there was error in excluding the testimony of Elmo Willard, set out in bill of exceptions No. 17."
Illinois Torpedo Co. v. Southwestern Oil Development Co., Eighth Dist.,
"See Decker v. Kirlicks,
M.A. Youngblood v. J.H. Ball et al., Eighth Dist.,
Note by Court: "The charge of the court on discovered peril was excepted to for want of pleading and evidence, and an examination of the evidence shows no good could come from a remand of the case."
Denton Milling Co. v. S.A. Blewett, Sixth Dist. Refused Oct. 24, 1923.
Note per Curiam: "The sureties on the supersedeas bond are not complaining of the action of the Court of Civil Appeals in entering judgment against them."
Laura Morrow v. Ft. Worth D.C. Ry. Co., Seventh Dist.,
Note by the Court: "The Court of Civil Appeals entered the proper judgment. In view of another trial we will say that the district court, in again submitting the case to the jury, should follow the approved definition of proximate cause."
Tyler County v. J.L. Chapman, Ninth Dist.,
Per Curiam: "The application is refused because the claim was not protected by the depositors' guaranty fund." (C.M.C. not sitting.)
Texas Co. v. E.C. Stovall, Second Dist.,
Note by Court: "We think the right result was reached in this case because the issue was tendered that defendant in error waived the forfeiture and plaintiff in error saw fit to accept the waiver and insist on holding the lease, which it could not do without being held to make the stipulated payments to continue the lease."
R.H. Clem v. J.H. Chapman, Eighth Dist.,
Per Curiam: "The facts do not show any alteration in body of note." Chief Justice Cureton not sitting.
E.L. Tidwell v. Houston T.C.R. Co., Fourth Dist.,
Note by Court: "We do not agree that appellee should be denied the right to recover if he was injured as the proximate result of negligence of appellant in failing to exercise ordinary care to keep a lookout, unless appellee was guilty of contributory negligence. The case must be remanded for a new trial under the conclusions of the Court of Civil Appeals as to insufficiency of the evidence to sustain the verdict for appellee, and we therefore refused the application for writ of error."
Railroad Commission of Texas v. San Antonio Compress Co., Third Dist.,
Note per Curiam: "This case does not come within the terms of Art. 6656. It was rightly decided, being governed by Art. 6657."
Franklin Fire Ins. Co., et al. v. Guaranty State Bank, et al., Fourth Dist.,
Note per Curiam: "Since under any proper view of the law, the automobile was charged with a valid lien in favor of the Bank, no other judgment could have been rendered than one adjudging the proceeds of the insurance policy to the Bank and denying any recovery to Mrs. Brazile and husband. Hall v. Decherd,
American Refining Co. v. Tidal Western Oil Corp., Seventh Dist.,
Note per Curiam: "This case was rightly decided on the facts, regardless of some of the reasons given by the Court of Civil Appeals in its opinion."
J.L. Chapman v. M.M. Reese, Ninth Dist.,
Note per Curiam: "The Assignment should have been considered, but it being manifest that it disclosed no reversible error, we refuse the application." Chief Justice Cureton not sitting.
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