*1 Tuesday procurement, exe in either the first mistake properties for sale said in delivery original cution, con of these written whereupon plaintiff or the July, filed first, was, alleged tracts, having been herein.” —there these no as vitiate such fraud appellant agree can neither with court This and, undertakings, second, consideration no thus good been of action has cause that a stated, ap-' agreement clаimed shown for the authority as in cites he nor that liability pellee not to enforce entire (Edward Thompson support of one liens; notes, appellant on mechanics’ 873), Sawyers, 111 Tex. 234 S. v. are' and cited gen trust. These authorities deeds of presented; applicable here to the situation supporting Prid these conclusions: as repel- outstanding contrary, these on the lent features S.W.(2d) App.) v. Furnish Com. appеar upon face 307; Rogers Rogers (Tex. App.) 15 Com. pleading: original him- That the contracts S.W.(2d) Jurisprudence, “Evi 17 Texas liens in the and wife mechanics’ self reflected Cases,” chapter 13, dence in 352-402. Civil §§ nature, and deeds of trust were contractual Sawyers Case, the one express writing, their and recited were obligations building ing; appellant relies, prom- it was averred that the pay specific for each amounts suрplementary ise books issue furbish the separate undertak- in a distinct originally had made in been fraud that, after the transfer thereof deceit, knowledge with the that here, appellee original the they, contractors with, complied original in- be tent not with the knowledge terms full all so; to do that obvious- to undertake prior express agreements their of these own, ly pre- differentiates the cause here obligations, likewise additional executed where, recited, sented, as no intima- there is writing, reaffirming outstand- as still originally the did tion—either or at time previously stipulated ing again expressly agreeing amounts agreements appellee extension same; —that pay the carry not intend out all of its undertak- other are so thirteen transactions that ings; indisputably appears and it further pleaded only, off-set counterclaim aрpellant’s own mouth the re- that plainly are stated to trans- have been distinct agreements merely newal he the ones independent having no connec- actions obligated originally had himself primarily tion with notes and here liens when the time came to later enter into them. agreements upon; that the extension sued orig- unnecessary, were inally were wife the terms and for amounts on Further discussion is deemed contеmplated by and since these conclusions determine merits merely appeal; judgment affirming and his of renewals that that formerly writing agreed had accordingly the learned trial court has here- make, allegation to that lee to do tion what and there is no whatever tofore been entered. any agreements appel- were made Affirmed. any or in addi- work different from provided agree- for in the originally finally, аs written: there is ments any no averment sort to the effect contracts, verbal, whether written appellee were entered tent in- with the carry not to them out. et STEVENSON al. v. CITY OF ABILENE This résumé of the averments makes plain, us, appellant’s position seems to al. et may, through proof here in effect that he No. 1212. prior agreements effect, oral to that show Appeals expressly agreements that his to stated Court Civil written Texas. Eastland. stipulated pay express sums, well Jan. 1934. prior obligations, written renewals of such pay Rehearing were in fact a different or Denied Feb. 1934. sum; expressed obligations less such and the written contracts were not intended really all; to be fulfilled at subsequent cancel, refusal to or at least to re duce, stipulated paid the amount so to be con legal stitutes fraud as would vitiate appraisal them. If that be a сorrect alleged by him, pur facts so which for the poses of true, the demurrers must taken upon, it is clear that neither the case he relies generally, uphold nor the authorities the view right appears here; of action contrary, it seems clear that —no accident or *2 646 judg- suit, dismissing from which
tered appeal prosecuted. ment this petition was Attached an exhibit by executed a written instrument certain primary constituting the basis alleged action, is here of cause of full, set out in as follows: “The of State of by presents: That all men “Know these being county State said and Fred Cockrell of the 2, 196, 2 and Lots owner Block Lqt 4, 3, 220, 2,1, and Lots Block and and map 221, 222, Block and Block as shown on part Abilene, and survey Taylor County, a for paid Abilene Sewer consideration valuable hereby grants corporation, and a conveys Company and said assigns pеrpetual said easement over a 196, in Block Lot Block and-3 and Lots 220, 221, purpose 4, for the Lot Block ditches, pipes constructing maintaining convey anu the waste water flumes to septic a and construct- to be maintained point Company at west of some ed Abilene, Cedar Creek grants and its to said Sewer convey assigns perpetual right a the waste septic tank over said lot No. 4 221, water Block and and tо there deliver said 4, empty same on lot No. grantor hereby heirs himself binds charge assigns take of the said grantee 4, given on said Lots perpetual a 1, Block 221 and easement over Lot 222, purpose conveying over Block necessary if not cared for waste or water grantor on lot 4 to Cedar Ci’eekand necessary assigns agree if heirs Sayles, and his Stevenson, John J.. McAllister appellants. to construct a ditch on said lots over Sayles, Abilene, for Jack all boundary 221,and Block to north 4 Block Wagstaff, Harwell, H. L. DeBusk line the for of Block and maintain the same ap- Douthit, Wagstaff all for & puipose conveying that is waste pellees. for on lot 4 said Cedar Creek cared grantor the event and in heirs and HICKMAN, Justice. Chief assigns to maintain shall fail ditch for a Stevenson, joined pro Appellant Ellouise C. gi’antee assigns or its shall husband, J. McAllister light. Stеven- forma have such son, against in the court below suit filed this perpetual “This easement Abilene, municipal corporation, grantee covenant with the land pri- Utilities and vate Texas West agrees all deliver water from said against corporation, to recover 4,No. tank on said lot above described. $80,000 damages breach my day January, “Witness hand this 7th sep- to deliver waste water from a covenant 1905. tank, сonstituting a of the sewer tic “Fred Cockrell.” city, on lands owned upon by appellant. Texas Com- The West Utilities The covenant relied party expressed pany concluding defendant “in in the was made order was words “ * * * ownership entire servient es- of follows: may agrees before court in all order that Grantee deliver water from tate may granting No. its decree said lot the court re- describ- petition alleged рrayed fox’.” When the case was called ed.” The lief municipal general corporation trial, operating sustained is a court de- by special urged granted and, a charter to it murrer de- under act! clining amend, judgment Legislature Texas, chap-' further to en- the state ' plaintiff Legis- contaminating polluting Special the 32d ter 45 of the Laws supply; prior Lake Texas; the said water the said to the execution lature of city granted a Penick is instrument, some distant 25 miles of the above associates, premises line, plaintiff by Richey air twice franchise to R. D. *3 following me- assigns, of con- three the times that and their for the distance operating structing, maintaining, courses, a sew- efflu- anders of and said said water and grant any way erage city, ent not in in in which could contaminated said have lake, puri- city provided the said should but would have filtered аnd that the expiration thereto; right years of 15 fied its travel said but that de- at time after the city purchase officers, certain fendant instance to same and its at the the request city specified.; and such franchise of there- therein of Stamford terms was to said upon premises, assigned possession plaintiff’s duly and transferred and thereafter seized took of private dykes Company, proceeded cor- and tо construct the Abilene Sewer instrument, system laterals, poration, grantee prevent in the above and ditches and in order to sewerage and the return of which constructed the said effluent to said creek. “ put operation. further al- in It was same XXIV. That on or about the thereafter leged contemplated time of that it was at the January 1923, day plaintiff 15th of and de- delivery of the execution and city Sup- fendant made entered into and copied water from that the waste plemental Contract shown herein Exhibit as septic tank the said Fred be used ‘Iff hereto attached and made a here- Cockrell, heirs, assigns, irri- his and of; pursuant plaintiff to said contract gation and of the lands then owned there- designation Ellouise C. Stevenson made her acquired by him, assigns, heirs, after and writing appointing Lloyd in B. Thomas of objects purposes that one and of and Taylor County, Texas, agent upon whom delivery agreement was the of contract given, desig- notice could be and filed such be, and would water so that could said city secretary nation with the of said day be, put to a On the 28th beneficial use. Lloyd agent, Thomas, and that B. said has 1917,appellant July, Ellouise C. Stevenson continuously Taylor resided and been in premises acquired land and County, agent; and has been and is now such wife, Emily B. Fred Cockrell and rell, Cock- plaintiff performed has her ob- separate her sole estate. The as ligations under said contract and in order (cid:127) Company Abilene Sewer maintained constructed carry imposed to tract more structing out the burdens con- ditches, pipes, tank, plaintiff spent Ellouise O. Stevenson flumes, emptied all and delivered than One Thousand Dollars in con- accordance with its sаid waste water contract dykes, storage ditches and tanks sys- and covenant until it sold might in order that such effluent water year city Abilene, in tem to the In the deed 6f 1920. spread over land without back conveyance from the Abilene creek, year thereafter, into the 1923 to sums of take and for each city to Sewer 1928, inclusive, plaintiff spent large “ * * * Also, language: all of the this rights gether money employing a water master to to- of said Abilene Sewer charge of such effluent. thereof, to be “ thereupon XXV. That in- in- number of it, performed by granted the said Abilene city rapidly habitants of said defendant Company by instru- creased, septic tank, operated, and said as January 7, 1905.” ment dated inadequate perform to (cid:127)became its function The enumerated certain acts of digesting sewage, the content'of 1913, 1915, 1923, Legislature 1925, the and and of enactеd permitted top solids to such of the solid said were cake at the pollution relating streams, tank, liquid sewage and the total unconstitutionality alleged the of each thereby through content forced to flow them, following allegations which plaintiff’s effluent line and onto land- thereby these: putting plain- an added burden on prevent same, tiff to care same year during “XXIII. That 1922 the becoming unwholesome; offensive and cоpious of Abilene established munici- remedy city did not defendant choose same pal supply, the result of simple expedient by employing longi- and tank the amount of total increase said effluent from partitions dividing tudinal compartments, into septic tank; thereupon digestive in each of which municipal corporation, Stamford, a of Jones completed, process or the ex- more representаtions County, made plan building pensive tank twin beside recently that it had establish- defendant original tank so that each would take Its municipal source domestic and ed a wa- digesting. turn in Penick, supply, known as Lake ter Jones County, has the waters “That defendant since Clear construct- River, operated disposing Brazos other Fork of the Which ed and means fork sewage tributary, and is therefore and lake the said Cedar Creek wаs able divert its sewage returning amount 'of effluent to said said'Cedar spread capacity after Creek over the in excess of without materi- lands of plaintiff whereof, tlie expense ef- “In witness hereto deliver al signed January, day therefrom, ade- have D. 1923. A. now shown the 15th and such fluent sewage dispose quate of such paragraph XV.” “Ellouise C. Stevenson “J. “The paragraph McAllister Stevenson exhibit referred The City Abilenе, above, E, XXIV, as follows: Texas Mayor.” Exhibit Scarborough, “Dallas “The State ques controlling of said Stevenson Under our “Whereas Ellouise view . .county O. 2, tions, unnecessary ques Lot now the owner it is to discuss the State is' 220, perform lots 196, lots 2 3 Block tion whether to be the covenant (cid:127)Block 222, Block ¡1, contained Block ed in the map copied, *4 'by the* one the first shown Texas, instrument above by running purposes Cock- Fred owned heretofоre with the land. For the by grant rell, was, made in a this shall described decision we assume that it Company, dispose though shall to Abilene Sewer Fred dated the the the the Cockrell case as original in January 7th, grantor, Cockrell, and recorded Fred 29, pages plaintiff. and 42 of the did Volume 41 the Abilehe Sewer What Com * * Records, pany Only Deed covenant to do? this: “* septic To deliver all water tank from Abilene, city mu- the “Whereas Construing оn said lot above described.” county State, nicipal corporation of said language the is instrument this rights the franchise and is the owner of now whole, apparent contained it is (cid:127)granted to the Abilene in said instrument purpose 'of the contract to was not secure Sewer irrigation water, convey to but an easement regulations been have certain “Whereas company. to the ob It contained' no sewer by Board of Health of the the 'made 'State of State ligation septic to whatever construct the whereby it un- has become tank, and not it would doubtless be contend per- to for the above named lawful mit the waste company so, ed that had the not done Fred septic tank Cockrell against have had cause of action instrument, flow back to to referred damages it for for breach of the by cоntemplated Creek, into the as was Cedar upon. company, covenant relied The sewer parties to assignee Richey associates, of R. D. years, had a for a franchise term of 25 agreed by “Now, Therefore, be- it option by city which was an the contained joined by Stevenson, Mrs. Ellouise O. tween sewerage system purchase of Abilene to the Stevenson, husband, her J. McAllister prop to be constructed thеreunder. In order city Abilene, the that Mrs. Steven- erly operate necessary system, to the it was keep is to take care of said water and _son provision be made take to care of the Creek, flowing from same Cedar septic waste water from the tank. To that ,in so, City of case she should fail to do the purchased end such from easement Fred notify by giving Abilene, shall Cockrell, perpetual purchaser sаme made so that forty- she notice and shall written .her passed it could be of the receipt eight said notice the hours . sewerage system. Having the constructed stop flowing the water from within which system contemplated, company the sewer Creek, so, she fail to ‘.into do the and should obligated by its covenant to deliver .the .' n fínen city right upon go has the the septic waste water from the tank mentioned .premises the water such a to scatter upon in its contract No. 4 of lot the Fred prevent (cid:127)way going into the as to right Cockrell land. But the run the Should Mrs. Stevenson be absent .Creek. upoii waste water nant to the is not a land cove Taylor County, designate from agent she shall operate sewerage system the and use given; notice such shall be whom . septic perpetually. designation tank The instrument writing inbe and filed' shall .said part city the sеcretary, nowhere the sewer a covenant on contains the she fail with to should company septic agent, designate for use the tank shall the any period short, pe right definite time. In act notice as above have the without allege any right operate tition fails the breach cove Fred handle Her stated. property by company nant made sewer with to handle and distribute the any Cockrell. be absоlute without inter- water shall part on the whatever ference Considering question liability prevents running .long as she water from city Abilene, assignee Abi- into the Creek. Sewer lene are unable we to dis- by agreement it in not cover covenant addition to disturb made to- “This intended ' n original company rights made the sewer under the be- that contract and above company quoted. The deed the sewer Cock- and Fred tween city conveyed rights granted rell. (Tex. App.) to it above 140; tbe instrument first Com. 250 W. S. Ennis Water copied, “together City Ennis, tbe v. Works Tex. S. performed by City thereof to guage recognized That lan- (Tex. it” of Sweetwater v. Hamner merely covenant, App.) 191; City no continued existence Civ. created but new 259 W. S. of Ft. Worth Baptist App.) tbe of the one v. First Church Civ. theretofore made. Neither do we discover S. W. 1016. contract, additional covenant duty No rests to сon copied, appellant Ellouise C. between septic duct water from the it to the abandoned one so as to tank now used Stevenson to have been made after the of Stamford irrigation pur available to protested against of the waste poses. This is true same reasons as water from By gation into Cedar creek. assigned covenanted,- those above has not —it obli- that contract assumеd the legally and could two of covenant to do so._ finding preventing water from but neither City authorities, the above cited way express creek, its nor into Cedar Sturgeon, City Paris v. of Sweetwater implied covenant therein can be found Hamner, power to contract city perpetually on the tain and use the to main- to furnish water outside its limits de originally cón- Appellant’s petition brings nied. her case Company. strueted decisions, scope within of those *5 allegations up thereof that the land disclose But, independent foregoing, on which the waste water was to be deliver ed was and still is outside the assuming instruments evidence limits of a contract between Abilene. whereby agreed perpetually fur the latter irrigation from its water to the former nish then It trial is our view court did not agreed septic tank, existing sustaining and further general Its' err in demurrer. perрetually judgment therefore, will, to use said tank so as to be affirmed. appel make available water to .be used Rehearing. On irrigation purposes, petition lants for assigned’ subject rehearing general the motion for it is would still a In be demurrer. original opinion we erred The its authorized “,In operating following operate sys sew-' sewerage statement: charter to own system, govern tem, having system erage acquired exercising is power.” assignment operate Supporting same, undertaken to mental this it is not within City province power Pittsburg prescribe the motion v. Smith or cites of a court to App.) 230 and Ostrom sep Civ. S. W. it shall not abandon the use its City Antonio, San Tex. 62 S. tic tank deems, and construct one which it 909. We any reason, made sufficient op investiga-; to be more In desirable. certainly tion to determine whether the state erating system, seweragе exer is erroneous, language was-, ment was but the. cising governmental power. .doing unnecessary, 'because same conclusion it must left be free to use its discretion in regarded' would have been reached had we determining how best to serve its inhabitants. power municipal proprietary, rath A contract which would have the effect governmental. We, therefore, er than draw with fully disabling exercising it power, (cid:127)' oрinion. the statement from prevent and which would have the effect of ing controlling its affairs in the fu assigns many motion The errors based' way might best, ture void. A deem omission our to find certain facts. We power has not the to enter into findings, are unable fact be binding perpetually a contract to maintain cause there no statement of facts in the existing an tank for the appeal record. The an from order sus furnishing waste wаter individual for general taining a dismissing demurrer and irrigation purposes.. It must be left free to upon appellants’ declining the case to amend. changes it, make such in its in In this state of the record we' must assume discretion, public deems to every allegation that true thereto. fact good. City Co., of Brenham v. Water contrary finding make no Sturgeon, 143; City Tex. 4 W. S. of Paris v. considered, The motion has been App. 519, Tex. Civ. S. W. 5 we but adEere to the views heretofore ex City of pressed Uvalde v. Uvalde accordingly Electric & Ice Co. overrule same.