100 S.W.2d 1099 | Tex. App. | 1936
The City of Waco contracted for and had constructed a pipe line for the conveyance of water for municipal purposes from Lake Waco to the city’s filteration plant. The line proved defective and as a consequence the city brought this suit against O. N. Floyd and J. L. Lochridge, the engineers who drew the plans and specifications, W. E. Callahan Construction Company, the contractor, and United States Pipe & Foundry Company, who manufactured and furnished the pipe used in constructing the line, to recover the damages resulting therefrom. Plaintiff’s pleadings, so far as is material to the issues to be discussed, alleged that in 1928 the City of Waco employed Floyd and Lochridge as engineers to survey, lay out, design, and supervise the construction of the pipe line in question; that W. E. Callahan Construction Company, which we will refer to as Callahan Company, was engaged in building Lake Waco and was a prospective bidder for the contract to build the pipe line and that United States Pipe & Foundry Company, which we will call the Pipe Company, was engaged in manufacturing pipe such as was used in the construction of such lines; and that said engineers and the Callahan Company and the Pipe Company entered into a conspiracy for their own mutual benefits whereby it was understood that said engineers would specify Hi-tensile pipe, a particular brand of pipe manufactured by the Pipe Company, as the material out of which the line should be built, and that Callahan Company would secure the contract and would build said line out of pipe purchased from the Pipe Company; that if said defendants did not so conspire, they nevertheless acted separately to accomplish the same purposes; that the defendant Pipe Company advocated and by false representations induced the adoption of plans calling for the construction of said line out of a light grade of Hi-tensile pipe; that defendant Pipe Company falsely and fraudulently represented to the city and its engineers that Hi-tensile pipe of the grade suggested by it and as called for in said specifications, when cast in accordance with its specifications, would be adequate in strength for use under deep fills and would be suitable for the building of such line; that said defendant well knew that the kind and grade of pipe advocated by it was too light and would be inadequate in strength for service in the line as contemplated, but that nevertheless it fraudulently induced the city’s engineers to breach their contract with the city and to specify such pipe as the material out of which the line would be built and induced the city to agree to allow said line to be built thereof; that after said plans were adopted, the contract for building the line was let to the W. E. Callahan Construction Company, who in turn bought the necessary pipe therefor from the defendant Pipe Company;' that the contract as let called for the construction of said line of pipes of three sizes, to wit, 9,000 feet, 37½ inches in diameter; 9,400 feet, 40 inches in diameter, and the balance 42 inches in diameter; that after the contract for the construction of the line had been entered into, the Pipe Company fraudulently induced the engineers to allow the line to be constructed of pipes of two sizes only, to wit, 37½ inches and 42½ inches, respectively, and that the Pipe Company so supplied pipe of the latter dimensions and
The jury, in answer to special issues, found that the Pipe Company, through its agents and representatives, Mr. Stokes and Mr. Hanlon, represented to the city’s engineers that the Hi-tensile cast iron pipe which was actually specified and supplied for use in constructing the line would be adequate in strength for the purpose intended and for the depth of cover under which it would be laid and knowingly induced the city and its engineers to specify such pipe for the construction of said line; that but for such representations the city would not have allowed such pipe to have been so specified and installed; that in truth and in fact said pipe was inadequate in strength for the services intended and particularly for the depth under which it was to be installed and the Pipe Company knew of the conditions under which the pipe was to be laid and knew that said pipe was inadequate, or should have known it by the exercise of reasonable diligence; that the use of the two size combination of pipe actually used in the construction of the line constituted a material departure from the original specifications and the pipe so used was not substantially equal in strength to the 40-inch pipe originally provided for; that the Pipe Company represented that the two-size combination of pipe actually used in the construction of the line was adequate in strength for the depth of covering under which it would be laid, and the plaintiff believed such representations and but therefor would not have installed such pipe in the line; that the city was not aware of the inadequacy in strength of the line and could not have known thereof by the exercise of reasonable diligence until after the line had been accepted; that the material departure in the uscof two-size pipe combination for the three-size pipe combination as originally specified consisted in the use of different bells from those provided for in the original specifications; and that the reasonable value of the line as actually constructed, as of the date of its acceptance by the City of Waco, was $150,000. Based upon the foregoing findings, judgment was rendered for the city against the United States Pipe & Foundry Company for the sum of $237,159.78, that being the difference between the original cost of the line and its actual value as found by the jury. All other defendants were discharged. The Pipe Company appealed.
Appellant’s first major proposition is that the Pipe Company’s representatives did not make any misrepresentations as to the sufficiency of its pipe for the job in question, but that any representations made by them were mere expressions of opinion, which opinions were accepted as such by the city's engineers; that the pipe manufactured by appellant was a standard product and the city’s engineers had before them proper data showing the chemical content of such pipe, the results of certain laboratory tests that had been made -for the purpose of testing the strength of such pipe, and the methods used in making such tests; that the question as to whether such pipe was sufficient for the job in question was purely an engineering problem, to be calculated by the city’s engineers, who were experts in their line capable of making such calculations, and therefore they had no right to rely on the opinions so expressed by appellant’s representatives, and such representations could not constitute the basis of actionable fraud. Its second major contention is that there was no contractual relation between appellant and the City of Waco, and consequently appellant is not responsible for any damages that may have accrued to the city by reason of any misrepresentations on its part made to the city’s engineers as to the sufficiency of the pipe for the job in question.
We will first review the facts concerning the nature of the representations claimed to have been made by the Pipe Company and relied on by the city and the relation that existed between the parties at the time these events occurred. The evidence shows that in 1928 Callahan Company was engaged' in building Lake Waco for the city. During the same year the city employed Floyd and Lochridge, engineers, to survey, lay out, design, and supervise the construction of a pipe line from said lake to the city’s Alteration plant, a distance of approximately 28,500 feet. It was understood that the line
“Strength of Pipe Under External Load.
“In connection with lettings in the South, it has recently been necessary for us to guarantee the supporting strength of cast iron pipe. Recently tests were made at Burlington on 36"pipe and all classes were found*1104 to be much stronger than required by the various Specifications. Some of these tests were made in the presence of outside Engineers and the .results checked very carefully.”
After describing the tests that had been made and the results obtained, the following material statements were made:
“Comparative Strength of Hi-tensile and
Regular Sand Cast Pipe Under Crush- . ing Loads.
“Objects of Test
“First: To determine the suitability of cast iron pipe of comparatively thin sections for use under deep fills.
“Second: To determine whether the Modulus of Rupture calculated from the test bars is indicative of the strength of the pipe under this load.
“Third: To determine the comparative strength of Hi-tensile and regular sand cast pipe under these conditions. * * * “Conclusions
“First: It is evident that cast iron pipe of standard dimensions has ample strength for use under heavy fills. * * *
“Third: That Hi-tensile pipe cast in accordance with our Specifications is amply strong for use under deep fills and meets the requirements of Specifications for culvert service.”
In this connection it should be noted that all of the tests referred to in said report were made on specimens of the barrel portion of the pipe and not on the bell portion thereof, and that, according to the testimony, the pipe actually furnished by the Pipe Company and installed in the Waco line, while sufficient to withstand the internal strain, was too light to withstand the overburden or external stress and that most, if not all, of the breaks complained of occurred in «the bell portion of the pipe. The water head from the low point to the high point in the proposed line was less than 100 feet and the' city’s engineers entertained no doubt as to the sufficiency of I-Ii-tensile pipe to withstand the internal strain, but they were doubtful about its suitableness to withstand the external 'stress or overburden in deep fills, 'particularly where the pipe was to be as large as was necessai-y to be used in the line under consideration. They had before them the results of the laboratory tests above referred to and could calculate for themselves the weight of the external' load to be carried by the line when in place under the deep fills, but they were afraid-that the tests previously made by the company for the purpose of showing the strength of individual pieces of the pipe did not fully reflect what the pipe would do when placed under ground in actual service. They were anxious and solicitous for information as to what such pipe had done when put to the actual test. They were referred by the Pipe Company to a number of places throughout the United States where Hi-tensile had been used in flow lines, but it does not appear that in any of these lines pipes of large dimensions had been used in deep fills such as was required by the Waccr job. It also appears-that each of these projects to which the engineers were referred had been built prior to the adoption of the new designs for the bell portion of Hi-tensile pipe, as hereinafter more fully explained, and hence said lines were not built of pipe with light bells such as were supplied for the Waco job. Mr. Hanlon, the Pipe Company’s southwestern salesman, who was undertaking to induce the city’s engineers to specify Hi-tensile pipe as manufactured by his company, had worked for the company for fifteen years and was experienced in all its branches. Prior to completion of the specifications both Hanlon and the home office of the company had been furnished with a profile of the proposed line and knew the dimensions of the pipe needed and the depth óf the fills under which it was to be laid. The city’s engineers made numerous specific inquiries of Planlon as to whether Hi-tensile pipe of the class and dimensions as proposed by his company would be suitable for deep fills under conditions such as it would be subjected to in the Waco job. Mr. Hanlon gave the. city’s engineers his unqualified assurance that the pipe suggested by his company was of adequate strength for the job and that such pipe had stood deep fills at other places. As a result of this literature and these interviews, the city’s engineers were finally induced to specify Hi-tensile as the material out of which the line could be built, and they were likewise induced to use the Pipe Company’s blueprints and specifications as to the chemical content, weight, and dimensions of the pipe to be used. The home office of the Pipe Company was fully informed of Mr. Hanlon’s success in this line.- Item 11 of the specifications, as drawn by 'the city’s engineers, called for the construction of a line 40 inches in diameter and provided in part as follows: “The pipe shall be Hi-tensile cast iron pipe of the dimensions shown on U. S. Cast Iron Pipe &
We will first discuss the question whether there was such contractual relation between the parties as to authorize the city to recover against the Pipe Company on account of the latter’s alleged misrepresentations concerning the suitableness of the pipe used in building the pipe line. It may be conceded that with few exceptions a manufacturer' who sells his goods to an independent dealer is not liable to a consumer who purchases from such dealer’ merely on account of misrepresentations made by the manufacturer to the dealer. This is because there is no direct contractual relation between the manufacturer and the consumer and because of a wise public policy that there should be some fixed and definite limitation to the liability of the manufacturer, whereas if indefinite, subsequent purchasers should be allowed to recover, there would be no end to the manufacturer’s liability. But the case here under consideration is not one in which the manufacturer sold to an independent dealer and the latter in turn sold to a consumer of his own selection. Here the Pipe ’Company, as the manufacturer, and the city, as the ultimate consumer, were not strangers to each other in the transaction. The city desired to let a contract for the furnishing of the necessary material and the installation of a pipe line. Callahan Company could build the line but had no pipe. The Pipe Company had the pipe but could not install it. The result was that the Pipe Company and Callahan Company formed a common design to induce the city to agree to permit the line to be built of Hi-tensile pipe, a pipe manufactured by appellant, and to secure the contract for Callahan Company to build the line of such material. It was contemplated that Callahan Company would buy from the Pipe Company the pipe necessary to fulfill the contract, and each of the parties would then have accomplished his purpose. The evidence is undisputed that the Pipe Company and Callahan Company were working together for a common purpose. The Pipe Company by its representations induced the city to specify Hi-tensile pipe and to agree to allow the line to be built of pipe cast in accordance with the Pipe Company’s specifications. The Pipe Company aided Callahan Company in securing the contract, to the exclusion of all other bidders, by giving to it a lower quotation than was given to other’ prospective bidders. Callahan Company bid on nothing but Pli-tensile pipe, thereby excluding all other materials, and secured the contract to build'the line of such material. The Pipe Company then manufactured the pipe for this project and sold the same to Callahan Company, and the city, by reason of the representations of the Pipe Company, was induced to allow such pipe to be installed and to accept the line when built thereof. That the Pipe Company knew that the particular pipe sold by it to Callahan Company was to be used exclusively in building the Waco line is shown by the fact that each joint of such pipe had the word "Waco” imbedded or cast therein. We think there was such intimacy of relationship between the parties as to make the Pipe Company a party to the contract in the sale of the pipe to the city. Callahan Company was but the agency.or means employed by the Pipe Company i<< ¡¡oiling the pipe to the city. Under these'chv utfistanc-es, we think the Pipe Company can b\e held for breach of contract because of its\ misrepresentations as. to the suitableness of its • pipe for the purposes intended. Timberland Lumber Co. v. Climax Mfg. Co. (C.C.A.) 61 F.(2d) 391; Richardson Machinery Co. v. Brown, 95 Kan. 685, 149 P. 434; Williston on Sales (2d Ed.) Vol. 1, Page 488, § 244.
It is said that “any positive affirmation, or representation, made by the vendor, at the time of the sale, with respect to the subject of sale, which operates, or may op
Among other representations made by appellant as to the qualities and suitableness of its pipe was that contained in the report of its experts, a copy of which was forwarded by Stokes, appellant’s vice president, to the city’s engineers. This report represented that suitable and appropriate tests (setting out the nature of such tests and results obtained) had been made on specimen bars of pipe material for the purpose of determining the suitableness of ordinary cast-iron pipe for use under deep fills and to determine the comparative strength of Hi-tensile and ordinary cast-iron pipe under crushing loads and concluded with the statement “that Hi-tensile pipe cast in accordance with our specifications is amply strong for use under deep fills and meets the reqüirements of specifications for culvert services.” While the last-quoted clause was contained under the heading “Conclusions,” this did not render the representation by the Pipe Company a mere expression of an opinion. The report purported to be the findings and conclusions reached, not by ordinary engineers but,by experts in the pipe business, after appropriate tests had been made for the purpose of ascertaining the facts. The Pipe Company, by forwarding the report to the city’s engineers, thereby adopted the statements contained in the report as its own and put the same forward as the Pipe Company’s •¿presentations that pipe so manufactured was of adequate strength for deep fills. Such statements when, so advanced for the purpose of inducing the sale amounted to warranties as to the suitableness of the pipe, for a breach of which an action will lie. 55 C.J. 688, § 690. Moreover, the appellant’s southwestern sales manager, at the time the specifications were being drawn and- with full knowledge of the conditions under which the pipe was to be used, gave the city’s engineers his unqualified assurance that such pipe had withstood the strain of deep fills at other places and was of adequate strength for the Waco job. These representations amounted to express warranties, for a breach of which appellant is liable. Roberts v. Roberts (Tex.Civ.App.) 27 S.W.(2d) 880; Free Sewing Machine Co. v. S. T. Atkin Furniture Co. (Tex.Civ.App.) 71 S.W.(2d) 604. Furthermore, after the plans had been drawn and the contract let, appellant’s sales manager persuaded the city’s engineers to permit a change to be made in the sizes of the pipes to be installed and* to allow the line to be built of pipes of two sizes, to wit, 37½-⅛⅛ and 42½-⅛⅛ in diameter and manufactured in accordance with appellant’s specifications. The fact that this change had been induced by appellant’s sales manager was fully communicated to the company. In fact, the Pipe Company was charged as a matter of law with notice of all information thus obtained by its said sales manager in the course Of his employment. 2 Tex.Jur. 563-570; Bailey v. Sovereign Camp, W. O. W., 116 Tex. 160, 286 S.W. 456, 288 S.W. 115, 47 A.L.R. 876; Calhoun v. The Maccabees (Tex.Com.App.) 241 S.W. 101. Thereafter, with full knowledge of the facts and circumstances under which the city proposed to use the pipe, and with imputed, if not actual, knowledge that its sales manager in making the sale had represented that the pipe was of adequate strength for the purposes intended, appellant manufactured and delivered the pipe for installation in the line and permitted it to be installed and •thereby impliedly represented that it was suitable for the. purposes for which it had been bought. 37 Tex.Jur. 290; Turner & Clayton, Inc., v. Shackelford (Tex.Com.App.) 288 S.W. 815. The jury on ample evidence found that the pipe specified in the specifications for use in the Waco line was inadequate in strength for the services intended and that the pipe actually installed in the line was inadequate in strength for the depth of cover under which it was laid. There was therefore a breach of the warranties above referred to.
In this connection, we take note of appellant’s contention that the question of whether the pipe offered by it was of sufficient strength to withstand the overburden was purely an engineering problem, and since the city’s engineers were experts in that line and had been furnished with accurate data showing the results of tests that had been made for the purpose of demonstrating the strength of such pipe and said
But if we be mistaken in our view that there was such contractual relation between the Pipe Company and the city as to authorize the city to recover because of breach of warranty, we think nevertheless the city is entitled to recover on the ground of fraud. It will be recalled that Hi-tensile pipe had been in use only a few years, and the city’s engineers were unfamiliar with the use thereof. The Pipe Company had recently materially reduced the thickness and weight of the bells on its 37½-⅛⅛ and 42½-⅛⅛ pipe and was therefore selling for use in the Waco job, pipe manufactured in accordance with new specifications. Apparently pipe manufactured according to these new specifications had never been tested by actual use. The Pipe Company represented that Hi-tensile pipe cast in accordance with its specifications was amply strong for use in deep fills and its sales manager represented that such pipe had withstood the strain of deep fills at other places and was of adequate strength for the Waco job. Appellant’s former chief engineer testified that .he had protested against the use of the new specifications calling for light bells and had informed the vice president of the'eompany that bells cast in accordance with the new specifications would be too light and would not stand the calking strain nor the overload. But the vice president was undertaking to manufacture a light pipe that would eliminate concrete as a competitive building material, and consequently he overruled or ignored the protest of the company’s chief engineer. It developed that the light bells on the pipe manufactured for the Waco job in accordance with these new specifications were too light and that the'line broke down as a result thereof. The j-^ry found that appellant’s representatives knew or had reasonable cause to know that pipes of the two sizes sold for installation in the Waco line were inadequate in strength for the depth of cover under which they were to be laid, but that nevertheless said agents riepre-resented that such pipe was adequate in strength for such purposes. The evidence was sufficient to support such findings. Apparently appellant, in order to meet competition, was selling for use in the Waco job a product manufactured in* accordance with a new and untested design, and according to the findings of the jury it either knew that such pipe was inadequate in strength for the purposes for which it was to be used or was acting in-reckless disregard of the consequences. A false affirmation of a material fact made for the purpose of inducing a
The appellant is a foreign corporation with a permit to do business in this state and having its principal place of business in Dallas. Its plea of privilege to be sued in Dallas county was overruled, and this ruling is assigned as error. The evidence shows that all of the representations made by the representatives of the Pipe Company to the city’s engineers were made in Dallas county. It is upon this theory that appellant contends that the trial court erred in permitting the suit to be maintained in McLennan county. Under the provisions of Revised Statutes, art. 1995, subds. 23 and 27, the plaintiff had a right to maintain the suit against the appellant, as a corporation, in any county in which the cause of action or a part thereof arose. A cause of action consists not alone of the genesis of the right but of the breach of the right, and in order to maintain the suit in some county other than that in which the corporation’s principal place of business is located, it is necessary and only necessary that some part of the primary right, or some part of the transaction relating to the breach of that right, must have occurred in the county where thé suit is filed. Stone Fort National Bank v. Forbess (Tex.Sup.) 91 S.W.(2d) 674; Savage v. H. C. Burks & Co. (Tex.Civ.App.) 270 S.W. 244; Mercantile Bank & Trust Co. v. Schuhart, 115 Tex. 114, 277 S.W. 621. It may be conceded that the false representations in the case at bar were made and that the consent of the city’s engineers was obtained in Dallas county, but it was known and intended at the time these representations were made that the city of Waco would later, as a result thereof, adopt the specifications recommended by the Pipe Company, enter into a contract for the building of the line in McLennan county, and permit the installation of the pipe manufactured by appellant in accordance with the specifications as recommended by it. Later, as was contemplated by the parties, the board of water commissioners adopted the plans in Waco, entered into a written contract with Callahan Company for the building of the line in McLennan county, and the pipe as manufactured by the Pipe Company was actually installed in McLen-nan county. It was a part of the original scheme or design that the Pipe Company would furnish the pipe and that it would be installed in McLennan county. While the deceit may have been practiced and the consent of the city’s engineers obtained in Dallas county, the purpose of the Pipe Company had not been fully accomplished nor had the city been fully injured until the pipe had been installed in McLennan county and the contract price paid. We think the real injury to the plaintiff occurred at least in part in McLennan county, and therefore plaintiff had a right to maintain the suit in that county. Mercantile Bank & Trust Co. v. Schuhart, supra; Willis v. Victoria Bank & Trust Co. (Tex.Civ.App.) 76 S.W.(2d) 532; Brown v. Gray & Wilmerding (Tex.Civ.App.) 256 S.W. 977; Commercial National Bank v. First National Bank (Tex.Civ.App.) 77 S.W. 239, reversed on other grounds 97 Tex. 536, 80 S.W. 601, 104 Am.St.Rep. 879.
The plaintiff alleged a conspiracy between the city’s engineers, Callahan Company, and the Pipe Company to induce the city to specify Hi-tensile pipe and to enter into a contract to build the line out of such material, and that as a result the city was induced to contract for and to accept a line so built and was damaged thereby. The plaintiff sought a judgment against all of the defendants jointly. In the alternative, it was alleged that each of said defendants so deceived the plaintiff and in
The plaintiff’s suit as originally brought was against the three defendants heretofore named and also against Fidelity & Deposit Company of Maryland. Several of the defendants filed petitions to remove the cause to the federal court. On December 22, 1932, the federal court, at its fall term, heard a motion to remand to the state court and at that time announced its judgment dismissing the suit as against the Fidelity & Deposit Company and sustaining exceptions of misjoinder of other defendants and striking from plaintiff’s petition all the allegations of separate suits and causes of action against the several defendants, leaving only the joint action against the three named defendants based on the allegations of conspiracy. Thereupon, the court, finding that there remained no separable controversy, remanded the cause to the state court. At that time, however, the court announced that the entry of the order, on such judgment would be withheld until January 15, 1933, in order to extend to plaintiff the opportunity of taking such steps as it saw fit in contemplation of said ruling. On January 10, 1933, and before the order referred to had been entered, the plaintiff filed motion for new trial. On January 16, 1933, the court signed a decree in accordance with its judgment announced on December 22, 1932, but extended to plaintiff the right to present at a later date its motion for new trial. The court, with the consent of all parties, then entered a decree postponing the hearing on the motion for new trial until the February term of said court. Thereafter, on March 10, 1933, at the February term of said court, an order was entered setting aside the order of December 22, 1932, and the court then entered a decree dismissing the suit as to the defendant Fidelity & Deposit Company and remanding the cause as to all other parties to the state court. Appellant now contends that when the federal court sustained exceptions to and struck from plaintiff’s petition all allegations of separate suits and causes of action against the several defendants and rendered its decree of December 22, 1932, remanding the cause to the state court,' said federal court then and there lost jurisdiction to alter its decree at a subsequent time, and since at that time the separate cause of action against the appellant Pipe Company had been stricken from the petition, the state court never thereafter acquired jurisdiction over said cause of action and consequently had no right to render judgment thereon in this suit. In this connection, it is stipulated that no point is made by appellant that the postponed hearing had in the federal court on March 10, 1933, and the decree rendered therein, was
The appellant attempts to hedge against the application of the foregoing rule by calling attention to the fact that in its amended answer it filed a plea of limitation to that part of plaintiffs suit, as set up in the amended petition, to recover on the separate cause, of action against the Pipe Company, and it here contends that since the federal court stripped the petition of the suit to recover on the separate cause of action and since more than two years elapsed after the accrual of the cause of action and before the filing of amended petition, its plea of limitation to plaintiff’s separate cause of action against the Pipe Company should have been sustained. We cannot sustain this contention. Plaintiffs petition has at all times stated a valid cause of action against the Pipe Company to recover the damages suffered by the city by reason of the alleged misrepresentations and fraudulent conduct on the part of the Pipe Company. It is true, the petition, when stripped by the decree of the federal court of all allegations concerning the separate cause of action against the Pipe Company, left only the suit to recover on the ground of conspiracy among all the defendants, but said petition nevertheless alleged all of the facts and surrounding circumstances under which the cause of action arose and was ample to inform the appellant of the complaint made by the city and of the damages claimed to have grown therefrom. In fact, recovery could have been had thereunder against any of the defendants without proving the conspiracy. 27 C.J. 43. The action to recover on the separate cause of action against the Pipe Company arose out of the same transaction and was based on 'substantially the same state of facts as was the suit to recover jointly against all of the defendants for the alleged conspiracy. There was therefore no change in the identity of the transaction, and, in our opinion, the petition to recover on the joint cause of action was sufficient to toll to the statute on the action to recover on the separate cause of action against the Pipe Company, which grew out of the same state of facts. 25 Tex.Jur. 215; Cotter v. Parks, 80 Tex. 539, 16 S.W. 307; Southern Surety Co. v. First State Bank (Tex.Civ.App.) 54 S.W.(2d) 888. Certainly the cause of action as set up in the amended petition, after the case was remanded to the state court, was not wholly based upon and did not grow out of a new, distinct, or different transaction or occurrence from that previously alleged, and consequently the original pleading stripped as it was by the order of the federal court was sufficient to stop the running of limitation on the cause 'of action here recovered on. Vernon’s Ann. Civ.St. art. 5539b (Acts 1931, 42d Leg., p. 194, c. 115, § 1); 28 Tex.Jur. 213.
Judgment was rendered for the city for the difference between the amount expended by the city for the pipe line and the amount found by the jury as the reasonable value of the line as installed. The appellant complains of the measure of damages applied and contends in substance that
We have carefully considered all other assignments of error, including the city of Waco’s cross assignments of error, and find them without merit.
The judgment of the trial court is affirmed.