author: RANDOLPH, J.

text:
    DUNCAN v. NATIONAL UNION FIRE INS. CO. et al.
    (No. 3024.)
    Court of Civil Appeals of Texas. Amarillo.
    March 14, 1928.
    1. Appeal and error <⅝=»396 — Failure to serve notice of application for injunction and notice of appeal from refusal thereof held Immaterial (Rev. St. 1925, arts. 4654, 4662).
    Failure to serve notice of application for injunction restraining the prosecution of suit filed in another district and of notice of appeal from refusal to grant injunction held immaterial, since Rev. St. 1925, art. 4662, providing for appeal from denial of application for injunction, does not require notice, and provision of article 4654, for service of notice on opposite party, has no application, where court peremptorily refuses to grant- application for injunction.
    2. Courts <&wkey;475(I) — Proceedings in district court of one county, after jurisdiction had attached pursuant to petition previously tiled in another county, were void.
    Where subject-matter of petition seeking cancellation of certain indemnity .and for accounting was within jurisdiction of district court, jurisdiction thereof attached on filing of petition, though it did not present a cause of action, and all subsequent proceedings in district court of another county were void.
    3. Courts <&wkey;4i75(I) — Subsequent suit on bonds held identical with previous suit in different county for accounting and cancellation of bonds.
    Where suit for accounting and for cancellation of certain indemnity bonds, if successful, would relieve sureties from liability thereunder, subsequent suit in different county seeking recovery on such bond held, as bearing on right to maintain suit, identical, as involving bonds and liability thereon, though subsequent suit was also against sureties on bonds who were not included in first suit.
    4. Courts <&wkey;480(l) — No injunction may issue from district court of county restraining judge of district court of another county from proceeding with suit.
    No injunction may issue from district court of one county restraining judge of district court of another county from proceeding with action therein, since courts have eoArdinate power and jurisdiction; remedy being by temporary injunction restraining parties from proceeding with suit.
    Appeal from District Court, Floyd County; Charles Clements, Judge.
    Application for injunction by'S. E. Duncan against the National Union Fire Insurance Company and others. Judgment denying the injunction, and plaintiff appeals.
    Reversed and remanded, with directions.
    Ayres & Payne, of Floydada, for appellant.
    Thompson, Knight, Baker & Harris, of Dallas, for appellees.
   RANDOLPH, J.

Appellant, on the 7th day of November, 1927, filed suit in the district court of Floyd county, Tex., against appellee, for an accounting and to cancel certain bonds given by appellant to appellee, to secure the faithful performance of his duty as an agent of the defendant company, appellee herein.

On the 6th of December, 1927, appellant filed his amended petition in lieu of his original petition filed on the 7th of November. On the 19th of November, 1927, the defendant company, appellee, filed its suit, seeking a recovery on said bonds in the district court of Dallas county, against appellant, Duncan, and his sureties on said bond.

Appellant, Duncan, filed, in the district court of Dallas county, in such suit brought by the insurance company, his plea in abatement, which was overruled by the judge of that court. Appellant then presented, to Hon. Charles Clements, judge of the district court of Floyd county, an application for an injunction, restraining Hon. Towne Young, judge of the Forty-Fourth (Dallas) judicial district of Texas, and said National Union Fire Insurance Company, its attorneys, agents and employees, from further proceeding in the suit filed in the said Dallas county district court. This application for injunction was presented to-said judge of the district court of Floyd county, and was by him refused. The entry of Judge Clements noted on the application for the injunction is as follows:

“S. E. Duncan v. The National Union Fire Insurance Co. No. 2021.

In the District Court Of Floyd County, Tex., in Chambers.

“On this the 30th day of January, A. D. 1928, the above and foregoing petition of S. E. Duncan, praying for an injunction, as therein set out, has been duly heard and considered by the court, and, it appearing to the court that the cause of action involved in said petition for an injunction is now pending for settlement in the district court of Dallas county, Tex., and that on a hearing before the court in Dallas county, Tex., on a plea in abatement presented by S. E. Duncan, plaintiff herein, said Dallas county, district court, after having fully heard and considered said plea in abatement, overruled said plea in abatement, thereby said district court of Dallas county, Tex., retained, and now has and is claiming, jurisdiction to try the cause of action involved in the petition for injunction herein.
“The court is of the opinion that, said plea in abatement having been overruled by the Dallas county district court the recourse of S. E. Duncan, plaintiff herein, is by appeal from the ruling of said Dallas county district court, and that this court has no jurisdiction -whatever to interfere with the procedure, orders, and judgment of the district court of Dallas county, Tex.
“It is therefore the order of this court that the above and foregoing petition for injunction be not granted, and the same is hereby refused by this court. Charles Clements, Judge of the Sixty-Fourth Judicial District of Texas.”

From this refusal to grant the injunction, the applicant for same has appealed to this court.

For the purpose of the decision of the questions involved in this appeal, the facts as set out in the plaintiff’s petition in this suit and in the application for the injunction, which was duly sworn to, will control.

The appellee herein, the insurance company complains of the absence of any notice of the application for injunction and notice of appeal from the refusal of the lower court to grant same, and that, as a fact, it had no notice of the application, refusal, and appeal until the clerk of this court mailed it a postal card, notifying it of the filing of the transcript in this court, on this appeal.

Article 4662, Revised Civil Statutes of 1925, which provides for an appeal from the refusing of an application for injunction, does not require any notice of the proceedings to the adverse party, and, further, provides that an appeal from such refusal may be had by the filing of the transcript in the Court of Civil Appeals. The only requirement for notice is contained in article 4654, which provides that, should it appear to the judge that delay will not prove injurious to either party, and that justice may be subserved thereby he may cause notice of such application to be served upon the opposite party, his agent or attorney, in some manner as he may direct, and fix a time and place for the hearing of said application. Certainly this provision has no application where the court pereihptorily refuses to grant the application for the injunction.

As we view the questions presented by this appeal, the opinion of Chief Justice Cureton, in the case of Cleveland v. Ward (Tex. Sup.) 285 S. W. 1068, is absolutely decisive of, and as against, the contentions of appellee.

The record discloses that a suit had been filed in the district court of Floyd county seeking the cancellation of certain indemnity bonds and for an accounting as between the appellant herein and the insurance company. It appears that service of citation has been had in the suit in Floyd county. Consequently, the Floyd county district court had jurisdiction of the cause at the time of the filing of the suit in the district court of Dallas county.

The appellee’s contention that the petition filed in this cause does not present a cause of action becomes immaterial, under Judge Cureton’s decision in the Ward Case. As said by him in that case:

“Regardless of the question as to whether the original petition was sufficient in all respects against demurrer, its subject-matter was within the jurisdiction of the district court of Johnson county, and that court, by the filing of the petition, acquired jurisdiction of the suit.”

This applies to the petition in this case, and, the jurisdiction of xthe Floyd county district court having attached, all proceedings in the district court of Dallas county were and are void. Cleveland v. Ward, supra.

The contentions of appellee that the parties to the suit in the district court of Dallas county are not the same and occupy different positions from the parties in the suit in Floyd county, and, that the cause of action and relief prayed for in the Dallas county district court are, in every material and essential respect, different from the cause and relief prayed for in the Dallas suit, are untenable. Both suits involve the bonds and liability thereon. While .the Dallas suit is also against the sureties on the bonds, and such sureties are not included in the Floyd county suit, yet their liability on the bonds is not a primary one, and the plaintiff’s success in obtaining a judgment in the Floyd county case would release the sureties from such liability. Cleveland v. Ward, supra.

We hold that no injunction can or shall issue from the district court of Floyd county restraining. Judge Towne Young, judge of the Dallas county district court, because his is a court of co-ordinate power and jurisdiction with the district court of Floyd county. Cleveland v. Ward, supra.

We therefore reverse the judgment and order of the Floyd county district court, and remand the cause to that court, with instructions that this application for injunction be set down for hearing, and that notice issue to the adverse parties of the time and place for such hearing, and that on the hearing thereof, if it is made to appear that the suit in Floyd county district court was filed in said court prior to the filing of the suit in district court of Dallas county, and that citation has been duly issued therein, as required by law, said judge of the district court of Floyd county, to wit, Hon. Charles Clements, shall grant a temporary injunction in this cause, restraining the National Union Fire Insurance Company, its agents, attorneys and employees, as prayed for in the petition for injunction herein filed.
      <£»F6r other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    CLEM v. FULGHAM.
    (No. 2983.)
    Court of Civil Appeals of Texas. Amarillo.
    March 14, 1928.
    Rehearing Denied April 4, 1928.
    1. Fraud i&wkey;30 — One taking title to lot as security for debt of beneficial owner is not liable - for misrepresentations of agent of beneficial owner.
    One taking title to lot. from party purchasing-it as security for debt is not chargeable with any false representation as to size of lot made by agent of the beneficial owner to a subsequent purchaser.
    2. Fraud <&wkey;52 — In action for rescission, and damages- for false representations, evidence of representations with which defendant was not connected was inadmissible.
    In action for rescission on sale of lot and recovery of moneys expended, because of false representations as to size of lot, evidence of representations with which defendant is not shown to have been connected was inadmissible, and, where admitted, had no probative force against him.
    3. Fraud <&wkey;59(l)— Damages of one seeking rescission and recovery of moneys expended because of false representations are measured by actual loss.
    In action for rescission of sale of lot and for money expended in attempting to make use* of property, because of false representations as to size of lot, plaintiff’s damages will be measured by his actual loss, and will not include the benefits of the contract he has repudiated.
    4. Fraud <&wkey;64(l) — Whether admitted facts constitute ' actionable fraud is question for court and not jury.
    The question as to whether the admitted facts constitute actionable fraud is one for the court and not for the jury.
    5. Fraud <&wkey;13(2) — Whether false representation made in warranty deed is actionable does not depend on grantor’s knowledge of its falsity.
    Whether or not representation made in warranty deed when shown to be false is actionable does not depend on knowledge on part of grantor that it is false, since, if made with purpose of inducing other party to act on it, and it is acted on to that party’s injury, it can be made basis of suit for rescission and cancellation.
    6. Fraud &wkey;>6 — “Constructive fraud” is breach of duty which law declares fraudulent because of its tendency to deceive, to violate confidence, or injure public interests; “actual fraud.”
    Fraud is classified generally as “actual” and “constructive” fraud; “constructive fraud” being a breach of legal or equitable duty which, irrespective of moral guilt of fraud-feasor, the law declares fraudulent because of its tendency to deceive others, to violate public or private confidence, or to injure public interests, and neither actual dishonesty or purpose, nor intent to deceive, is an essential element, and therein lies the distinction between “actual” and “constructive” fraud.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Actual Fraud; Constructive Fraud.]
    7. Fraud <&wkey;>58(2) — Grantor’s knowledge of falsity of representation may be implied from existence of false warranty.
    Knowledge on part of the grantor that a representation made in a warranty deed is false may be implied from the existence of the false warranty.
    Appeal from District Court, Dallas County; Royal A. Watkins, Judge.
    Action by W. W. Fulgham against O. E. Clem. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    George T. Burgess, of Dallas, for appellant.
    Orate Dalton and N. B. Halporn, both of Dallas, for appellee.
   RANDOLPH, J.

This suit was filed by W. W. Fulgham, as plaintiff, against O. E. Clem, as defendant.

On trial, after hearing the evidence, the court instructed the jury to return a verdict for the plaintiff and to assess the plaintiff’s damages in the sum of $1,050, made up of the following items: Building the foundation, $300; material for foundation, $350; refund for purchase price of property, $200; return of lumber, $200 — and judgment was rendered on said verdict accordingly. From this judgment, Clem has appealed.

Plaintiff in his petition alleged that, acting through one Snow, plaintiff purchased a lot on Montreal street in the city of Dallas, and entered into a contract purchasing the same as a lot 50 feet wide by 200 feet long. A few days later Snow is alleged to have informed plaintiff that in fact the lot was 70.4 feet wide 'by 179 feet deep, but that he would sell it to the-plaintiff for the price named in the contract executed, to wit, $200 cash and a note for $2,300, payable in 90 days; that the plaintiff, believing and relying upon said representations as to the size and dimensions of the lot, agreed to purchase it on the terms and conditions stated; that, acting in accordance with said agreement and understanding, the defendant thereafter, on or about the-day of- August, 1925, made, executed, and delivered to plaintiff a certain warranty deed purporting to convey to this plaintiff the said lot, which is described in said deed as being 70.4 feet wide by 179 feet deep; that the plaintiff, believing and relying upon the said representations made by Snow as to the dimensions of said lot, accepted said deed and placed the same of record, paid the defendant tjie $200 cash, and executed and delivered to the defendant the note for $2,-300. Further, said petition alleges that plaintiff informed said agent, Snow, that he was purchasing the lot for the purpose of erecting thereon a four-apartment house and expected to begin the construction at once, and that he did proceed with the construction of said building, doing certain work and incurring certain expenses, until he discovered that said lot was only 50 feet wide by 168 feet deep, when he ceased work, and here seeks a cancellation of said deed and note, the refunding of the cash purchase money, and also seeks to recover the money expended by him in attempting to utilize the -•lot for the purposes for which he purchased same. Plaintiff also makes tender of deed reconveying the title to the defendant.

Defendant filed his answer, consisting of general and special exceptions, general denial, and special plea not necessary to he set out at this time.

The evidence discloses that one Parks was indebted to the defendant, Clem; that Parks, in taking the title to the lot from the party from whom he purchased it, had the deed made to Clem, as security for the debt owing him, and Parks, not Clem, was the beneficial owner of the title to the lot; that Clem was in California during the negotiations of the trade, and that the plaintiff never had any conversation with Clem at any time With reference to the lot sold plaintiff; that the agent, Snow, was representing Parks, the beneficial owner of the lot, in the sale of same to the plaintiff; and that the plaintiff, in contracting for the purchase of the lot, accepted a contract signed by Parks, such beneficial owner.

This being true, Clem could not have been guilty of making false representations to plaintiff as to the size of the lot. ' If Snow, as the agent of Parks, made any false representations as to the size of the lot, certainly Cleni cannot be charged with them.

Evidence of representations with which defendant, Clem, is not shown to have been connected, .is inadmissible (27 C. J. § 182, p. *53), and, where admitted, has no probative force as against Clem.

As we view it, there were no representations as to the size of the lot made by Clem or by any one authorized to act for him, except the statement made in the warranty deed, which was executed by Clem to the plaintiff. The original negotiations for the sale of this lot between Snow and plaintiff were for the sale of a lot 50 by 200 feet. The abstract disclosed a lot 70.4 by 179 feet, and Parks, executed a contract of sale covering a lot of that size and dimensions. There is and can be no controversy over the fact that Clem executed and delivered to the plaintiff his warranty deed, in which the size of the lot was given as 70.4 feet wide by 179 feet in depth. Was this an actionable representation upon proof of its falsity?

It will be remembered that the plaintiff’s petition is an action for rescission and cancellation, and for such damages as were caused to him in his attempt to make use of the lot, and was not an affirmance of the contract.

The plaintiff, appellee herein, contends that the measure of damages is the difference between the consideration paid and the value of the land actually conveyed, and cites George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456, and many other Texas cases in support of this contention. An examination of these cases shows that they were based on contracts which were not sought to be repudiated — that is, as in the Hesse Case, the plaintiff, without attempting to disaffirm the contract, brought suit for the decreased value of the' property purchased.

In this case, the suit is one for rescission and cancellation and for money expended in attempting to make use of the property for which it was purchased. This being the cause of action, the rule is:

“AVhere a defrauded party has the right to rescind and to sue for damages in deceit, his damages will be measured by his actual loss and will not include the benefits of the contract he has repudiated. In other words, the measure of plaintiff’s damages is not compensation for breach of the contract but compensation for the injury he has sustained through being inveigled into the contract.” 27 C. J. § 255, p. 103.

The question as to whether the admitted facts constitute actionable fraud is one for the court and not for the jury. 27 C. J. § 208, p. 71.

Chief Justice Key, of the Austin court, in the case of Holland v. Western Bank & Trust Co., 56 Tex. Civ. App. 324, 118 S. W. 218, 119 S. W. 694, lays down the rule that a party to a deed has the right to disaffirm or to rescind the contract, or to affirm it and sue for the difference in the value of the land as fraudulently represented and as actually existing, but that he was not entitled to both remedies. In that case, as in the case at bar, the petition went further and alleged that, on account of the fraudulent conduct alleged, he had been induced to incur certain expenses in the attempt to utilize the property. See, also, Fahey v. Kaies (Tex. Civ. App.) 181 S. W. 782.

Whether or not a representation made-in a warranty deed, when shown to be false, is actionable, does not depend on knowledge on the part of the grantor that it is false. If made with the purpose of inducing the other > party to act on it, and it is acted on to that party’s injury, it can be made the basis of a suit for rescission and cancellation.

Fraud is classified generally as actual and constructive fraud. Constructive fraud is a breach of legal or equitable duty, which, irrespective of the moral guilt of the fraud-feasor, the law declares fraudulent, because of its tendency to deceive others, to violate public or private confidence, or to injure public interests. Neither actual dishonesty of purpose nor intent to deceive is an essential element of constructive fraud, and therein lies the distinction between actual and constructive fraud. 26 O. J. p. 1061. It is therefore held that knowledge may be implied from the existence of a false warranty. 26 O. J. § 42, p. 1115.

It is held, in the case of Hexter v. Bast, 125 Pa. 72, 17 A. 254, 11 Am. St. Rep. 877, that the general rule is, to support an action of deceit properly so called, it must appear that the representation was untrue, that the defendant knew or ought to have known at the time it was made, that it was' untrue, that it was calculated to induce plaintiff to act upon it, and that, believing it to be true, he was induced to act accordingly; and further :

“As a general rule, the statement must be both false and fraudulent; but, if a person take upon himself to state as true that of which he is wholly ignorant, he will, if it be false, incur the same, legal responsibility as if he had made the statement with knowledge of its falsity; the fraud consists in representing that he knows that of which he in fact is consciously ignorant, go, too, if a person is thrown off his guard and deceived by a false and fraudulent warranty, it is sufficient, to prove the warranty broken, to establish the deceit (Addison on Torts, 1181); for one will be presumed to know of the existence or nonexistence of af fact which he undertakes to warrant.”

See, also, Wallace v. Tanner, 118 Ill. App. 641; Norton v. Doherty, 3 Gray (Mass.) 372, 63 Am. Dec. 759; Vanleer v. Earle, 26 Pa. 279; Carter v. Glass, 44 Mich. 154, 6 N. W. 200, 38 Am. Rep. 240; Trice v. Cockran, 49 Va. 442 (8 Grat), 56 Am. Dec. 151.

It appearing that this express warranty was made and that the lot was short 20 feet in width and 11 feet in depth from that deeded to the plaintiff, we affirm the judgment of the trial court.
      . <S=?For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: SMITH, J.

text:
    GOAD MOTOR CO. v. YANTIS et al.
    (No. 7975.)
    Court of Civil Appeals of Texas. San Antonio.
    March 21, 1928.
    Pleading <&wkey;fll — On plea of privilege, plaintiff has burden of showing that alleged grounds of venue in county of suit existed in fact.
    Where plaintiff asserted venue to be in county of suit upon several grounds that all defendants were necessary parties to suit, that as one of defendants was domiciled in such county, all defendants were suable there, that contract sued on was in writing performable by all defendants in such county, and that breach of contract occurred therein, held that on filing of plea of privilege by one of defendants to be sued in county of its domicile, burden rested on plaintiff to affirmatively show that one or more of alleged grounds of venue existed in fact.
    Appeal from District Court, Cameron County; A. M. Kent, Judge.
    Action by G. R. Yantis against the Goad Motor Company and others, wherein the named defendant filed a plea of privilege to be sued in county of its domicile. From an order denying the plea, named defendant appeals.
    Reversed, and judgment rendered that venue be changed to county of named defendant’s domicile.
    See, also, 296 S. W. 990.
    Davenport, West & Ransome, of Brownsville, and Wm. H. Russell, of San Antonio, for appellant.
    H. B. Galbraith, of Brownsville, for appel-lees.
   SMITH, J.

G. R. Yantis brought this action in a district court of Cameron county against the McDermott Motor Company, a Texas corporation domiciled in Cameron county, the Goad Motor Company, a Texas corporation domiciled in Bexar county, the Cadillac Motor Company, a Michigan corporation, and the General Motors Acceptance Corporation, “a corporation with an office at Dallas, Dallas county, Tex.” The suit was brought to rescind the sale of an automobile purchased by Yantis from- the McDermott corporation, to cancel certain promissory notes executed and delivered by Yantis as part of the consideration of the purchase, and to recover damages of the defendants, it being alleged that the automobile did not measure up to the seller’s representations as to its merits. The McDermott Company answered to the merits, but the Goad Company filed and urged a plea of privilege to be sued in Bexar county, conceded by the parties to be the county of its domicile. It does not appear in the record that the remaining defendants, the Cadillac and Acceptance Corporation, were cited or appeared in the case. The Goad Company’s plea of privilege was controverted and, upon a hearing, was overruled. This appeal is from the order denying that plea.

Appellee asserted the venue to be in Cameron county upon the several grounds that all the defendants were necessary parties to the suit, and, as the McDermott corporation was domiciled in that county, all defendants were suable there; that the contract in question was in writing, performable by all the defendants in Cameron county; that the breach of the contract, for which the defendants were jointly liable, occurred in that county. The burden rested upon the plaintiff in the action to affirmatively show by evi-denee upon the hearing that one or more of these grounds of venue existed in fact; otherwise appellant was entitled to its privilege to be sued in the county of its domicile.

We have very carefully reviewed the record, and conclude that appellee wholly failed to meet the burden resting upon him to sustain his claim that venue lay in Cameron county. Nothing in the record shows appellant to be a necessary or even proper party to the suit, and every hypothesis upon which venue as to it could be laid in Cameron county was excluded by the hearing upon the plea of privilege. For obvious reasons we refrain from discussing the facts or determining their effect upon the issue of appellant’s liability in the case pleaded.

The order overruling appellant’s plea of privilege is overruled, and judgment will be here rendered that the venue of this cause as to appellant be changed to Bexar county. Accordingly, the clerk of the district court of Cameron county is ordered to make up a transcript of the proceedings had in this cause, including the pleadings of the parties and all orders and judgments entered therein in said court, and transmit the same to the clerk of the district courts of Bexar county, to be there filed in -the district court of the Seventy-Third judicial district of said county, as prayed for by appellant.

Reversed and rendered.
      <©=>For oilier oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: STANFORD, J.

text:
    CORYELL COUNTY v. BURKE & CORBETT et al.
    (No. 618.)
    Court of Civil Appeals of Texas. Waco.
    Jan. 26, 1928.
    Rehearing Denied March 1, 1928.
    1. Highways &wkey;>l 13(3) — Road construction contract held not dependent for validity on county’s contracts with others relative to funds (Vernon’s Ann. Civ. St. Supp. 1918, art. 6904!/2k).
    Where county entered into contract to employ plaintiffs to construct state aid road, which contract was properly authorized as to funds furnished by the state pursuant to Vernon’s Ann. Civ. St. Supp. 1918, art. 6904½⅛ validity of employment contract held not dependent on validity of contracts between county and others relative to furnishing funds.
    2. Highways <&wkey;l 13(2) — Road construction contract held neither void nor voidable because made by county’s agents and. not by commissioners’ court (Rev. St. 1925, art. 1580).
    Where county judge and a commissioner entered into a contract, for the county, for the employment of plaintiffs to construct a certain road, held in action on contract that, because of Rev. St. 1925, art. 1580, such contract was neither void nor voidable on ground that it was not entered into for the county by the commissioners’ court, as such court, since it was made pursuant to authority conferred on the county judge and a commissioner by commissioners’ court.
    3. Highways &wkey;>l 13(3) — Commissioners’ court, by permitting contractors'to continue work under contract with commissioner and judge, ratified such contract.
    Where," through contract of employment made by county judge and one commissioner, plaintiffs were employed to construct a certain road for the county, held, in suit by such persons for payment for work and labor, wherein county’s defense was lack of proper authorization for contract by commissioners’ court, that, since commissioners’ court knew plaintiffs had been so employed, fully understood terms of employment, and permitted plaintiffs to continue work until road was 75 per cent, completed, such court thereby fully ratified acts of its agents in entering into such employment for county.
    4. Highways <&wkey;l 13(3)— County road contract held not void because not let on competitive bid, where contractors were to be paid out of state aid fund (Rev. St. 1925, art. 2368).
    Where county entered into contract of employment with plaintiffs for plaintiffs to construct a highway, funds for which were to be derived from state aid fund, from certain city, and indirectly from a state training school, and not from county itself, held, in action on such contract, that contract was not void for not having been let on a competitive bid, pursuant to Rev. St. 1925, art. 2368, since funds therefor were not furnished by the county.
    5. Highways <&wkey;-H3(3) — County’s contract for construction of road to be paid for out of state aid fund held not void because bond was not required (Rev. St. 1925, art. 2368).
    Where county entered into contract with plaintiffs to construct a road, the money for which was to be furnished from state aid fund, from a city and, indirectly, from state training school, but was not to be furnished by county itself, held, in action on such contract, that contract was not void, because no bond was required of the road builders pursuant to Rev. St. 1925, art. 2368, because of funds not being furnished by county.
    6. Highways <&wkey;M3(l) — Contract with county to build road to be paid for out of state aid fund, not let competitively, created relationship in nature of employment, county being record contractor.
    Where officers, for county, entered into contract with themselves and their successors for construction of road to be paid for by others, persons employed pursuant thereto to build the road were employees, rather than contractors with county for road building, where all details as to work, material, character, and price of road had been fixed and agreed on between commissioners’ court and state highway department without regard to persons who were to do actual building.
    7. Highways &wkey;>ll3(3) — Employment of plaintiffs by county judge and commissioner to build road for county held not void or voidable for lack of authority or proper conformance with law.
    Where county judge and one commissioner entered into contract of employment with plaintiffs to construct a certain road for county, held, in action for payment for work done and for materials furnished, that such contract was neither void nor voidable because of method of employment or persons by whom plaintiffs were employed, or because of any lack of competitive bids or other observance of statute in the employment.
    8. Counties <&wkey;d 16 — Statute relative to bids for contracts is limited to work that is naturally competitive (Rev. St. 1925, art. 2368).
    Rev. St. 1925, art. 2368, providing that the commissioners’ court shall not make contracts requiring an expenditure of $2,000 or more out of any county funds without submitting contract to bids, is limited to work that is in its nature competitive.
    9. Highways <&wkey;l 13(4) — County stopping! employees from working on road, which employees had agreed to build, when work was partly finished, was liable for breach of contract, though employment was not directly by commissioners’ court (Rev. St. 1925, art. 1572).
    Where the county had entered into an employment contract with plaintiffs for plaintiffs to build a certain road, but construction of such road was stopped when 75 per cent, completed, upon which employees sued for work and materials furnished, but not for damages, held that county’s stopping plaintiffs and ,not paying them was a breach of contract, even though the contract had not been entered into directly by the commissioners’ court, pursuant to Rev. St. 1925, art. 1572, providing that county shall act by such court, but by county judge and a commissioner.
    (0. Counties <&wkey;>47 — County may be held liable for acts of commissioners’ court within scope, or apparent scope, of powers.
    Acts of commissioners’ court, done within scope, or apparent scope, of powers vested in it under Constitution and laws, are acts of county, and, where counties in their corporate capacities commit a wrong in relation to property, the county, like any other corporation or individual, may be held liable.
    Appeal from District Court, Coryell County ; Joe H. Eidson, Judge.
    Suit by Burke & Corbett against Coryell County, in which a number of persons intervened seeking judgment against Burke <⅛ Corbett. From the judgment, defendant county appeals.
    Affirmed.
    T. R. Hears, of Gatesville, and Sleeper, Boynton & Kendall, of Waco, for appellant.
    McClellan & Cross, of Gatesville, for ap-pellees.
   STANFORD, J.

Suit by appellees Burke & Corbett against appellant to recover compensation alleged to be due them for labor and material furnished in the construction of highway No. 93. A number of parties intervened, seeking recovery against Burke & Cor-bett for labor and material furnished in the said construction. On a trial before the court without a jury, the court rendered judgment in favor of various interveners against Burke & Corbett for labor and material furnished, and also in favor of Burke & Corbett against Coryell county for $12,412.41, and directed that said amount be paid to the clerk of said court, and that out of said amount said clerk first pay the amounts awarded said inter-veners, and that the remainder, if any, be paid to Burke & Corbett. Appellant alone has appealed, and presents the record here for review. A more complete statement will be made in connection with our disposition of appellant’s assignments.

Under numerous assignments, appellant contends, in effect, that appellees Burke & Corbett had no contract with appellant to furnish the material and do said road work, but that, if there was such contract, the same was void, because: (1) Said employment was not on competitive bid; (2) said work involved the expenditure of more than $2,000, and no bond was required of appellees; (3) the commissioners’ court had no authority to make said contract by its county judge and one of its commissioners, and said contract so made, being void, could not be validated by a ratification by said court, etc. The record discloses that state highway No. 93, which had been taken over by the state, extended from the public square in the city of Gatesville, along Main street of said city to the corporate limits, then oh to the State Juvenile Training School, a total distance of about three miles. There was a good deal of negotiation by the county, the city of Gatesville, and the training school, each acting by its representatives, in an effort to have said road improved. The county commissioners were interested, in that they were interested in good roads in the county generally, but the county had no county funds to so use, but it was the only party in position to secure state aid. The city was interested, in that one of its principal streets would thereby be improved. The training school, and likewise the state, was interested, in that a good road would thereby be furnished from the city out to said state institution. The parties finally agreed, in substance, that, if the county, through its commissioners’ court, would secure state aid to the extent of 50 per cent, of the cost, and undertake to make said improvement, the training school would furnish the county all of the teams and tools necessary, and all the common labor, etc., and the city of Gatesville on its part agreed to furnish $6,000 to be paid to the county when said improvement was completed. So, with the above understanding the county, through its commissioners’ court, had plans and specifications of said proposed improvement made by Henry O. Porter, division engineer, giving a detailed statement and estimated cost of the work, totaling $41,250, and attached same to its application to the highway department for aid in doing said work, the allotment asked being $20,625, and in said application was included a resolution by the commissioners’ court appropriating to said improvement labor, teams, and equipment of the State Juvenile Training School to the amount of $20,625. The division engineer, on March 18,. 1925, made a report on the above application to the acting state highway engineer. Among other things, this report states, in effect, that the county has no cash funds for this work, but proposes to furnish all common labor, teams, and tools furnished to the county by the State Juvenile Training School, amounting to 50 per cent, or more of the cost of said construction. This report states further:

“Coryell county proposes to advertise this work for bids the same as any other project, and the county submit a bid in due form, with unit prices conforming with the prevailing prices for this class of work in this section of the state. If any contractor bids on the work, the court intends to advise that the county has no funds with which to do this work, but has the common labor and teams, and that, if the work is done, the county will have to bid the work in.”

By letter, the highway commission notified the county judge of Coryell county that it had apportioned $20,626 state aid to Coryell county on state highway No. 93 from Gates-ville to the State Juvenile Training School, said aid not to exceed 50 per cent, of the actual cost of construction; said letter reciting further:

“It will be necessary for the county to have plans prepared for this project. * * * After the plans have been prepared and approved by the department, the county will have to bid in the work.”

The county had the plans and specifications for the work prepared by the county engineer, giving an itemized statement of the entire work, and the cost or price per item, making a total for the entire improvement of $32,945.55, which was duly approved by the highway department by its state highway engineer; after which Coryell county, acting by its commissioners’ court, submitted a proposal, with a copy of said itemized statement of the improvement totaling $32,945.55 and plans and specifications attached, to the highway commission, to provide all the machinery, tools, do all the work, and furnish all the materials called for in the contract and specifications and to construct said improvement according to the requirements of the engineer as set forth in said plans and' specifications and itemized statement, and for the amount therein stated. This proposal states :

“It is understood that the county has no specific funds for this job; but is depending on labor, teams, and tools of the State Juvenile Training School, as per original application for aid. * . * * The undersigned agrees and pledges itself to complete the work in full by January 1, 1926. * * * Work to be done to the entire satisfaction of the state highway engineer.”

This proposal was signed by Coryell county, by L. M. Stinnett, county judge; W. B. Jones, T. H. Key, N. E. Jaroe, and B. L. Morrison, county commissioners. This proposal was accepted by the state highway department, and, on June 15, 1925, a formal written contract was entered into between Coryell county, represented by the then members of the commissioners’ court of said county, party of the first part, and Coryell county, represented by the then members of the commissioners’ court of said county and their successors in office, party of the second part, subject to the approval of the state highway commission, by the terms of which Coryell county, represented by the then members of. the commissioners’ court and their successors in office, party of the second part, contracted with Coryell county, represented by the then members of the commissioners’ court, party of the first part, “that for and in consideration of the prices and agreement mentioned in the proposal hereto attached and made a part of this contract, the party of the second part agrees to do at its own proper cost and expense all the work, and to furnish all the material, necessary for the improvement of road No. 93 * * * in accordance with the original application for aid, * * * and in accordance with the * * * specifications, proposal, and plans aforesaid, which are made part of this contract, and in full compliance with all of the terms of the specifications and the requirements of the engineer.” The second party further agreed "to begin the work as soon as authorized by the state highway department, and to complete same not later than January 1, 1926. The party of the first part, in consideration of the full performance of the work by said second party, obligated itself to pay to the second party the prices set forth in the attached proposal, and in the manner provided in the specifications aforesaid. This contract is duly executed by the parties of the first and second part, and recommended for approval June 15, 1925, by the division en'gineer, and approved by the state highway engineer on June 16, 1925.

Coryell county did some grubbing and clearing of the right of way for said highway No. 93, and, on July 12, 1926, obtained from the state highway department an extension of the time for the completion of said work; and on the same date, July 12, 1926, said county entered into a contract assigning its contract to W. E. Burke, but the state highway department failed to approve this contract. On December 17, 1926, the commissioners’ court of Coryell county adopted by resolution a schedule of prices to be paid for all classes of labor to be performed on said work, the rentals to be paid for various kinds of machinery, tools, wagons, trucks, graders, etc., every phase of said work being covered by said schedule, which was approved by the resident engineer and the highway department by the state highway engineer. On or about July 13, 1926, the commissioners’ court adopted a resolution reciting the fact that the highway department had failed to approve the subcontract with W. E. Burke, and to secure such approval would cause further delay, and, as the highway engineer on July 13, 1926, had approved the extension of the county’s contract to construct said road to January 1,1927, that said subcontract with Burke being inchoate, “the same is hereby canceled, and it is further ordered that L. M. Stinnett, county judge, and Commissioner B. D. Morrison are hereby instructed to take immediate and such steps as may be necessary for and on behalf of this court to complete said project.” In pursuance of this instruction by the commissioners’ court, B. M. Stinnett, county judge, and Commissioner Morrison, with the assistance of D. C. Eisher, the county engineer, on July 17, 1926, employed J. H. Corbett to do said work. The matter was fully explained to, Corbett, that the county had no funds for said work, and was not to be out anything, but that the county would receive 50 per cent, of the cost of said work, approximately $16,000, from the state highway department, and $6,000 from the city of Gatesville, which was put in escrow, to be paid when the work was completed. In consideration of the county paying over these amounts when collected, and the benefit of cheap labor from the training school, Corbett agreed to furnish all the machinery, material, and labor, and construct said road according to plans and specifications and detailed statement of the work, all of which had been approved by the state highway department, and all of said work to be approved by said department. Corbett, or rather, Burke & Corbett, as partners, began said work on July 19, 1926, and continued on said work until December 1, 1926, the work then being about 75 per cent, complete, when said work was stopped by the county judge, with the approval of the commissioners’ court. During this time monthly estimates were made by the resident engineer and approved by the division engineer on blanks prepared by the highway department, and vouchers for one-half of said estimates, less 10 per cent, held back, sent by the highway department to Coryell county, and by said county or the resident engineer paid to Burke & Corbett. On January 10, 1927, the court adopted a resolution reciting that the time allotted to the county to complete said work had expired, and that the same was not finally and fully eomplfeted, so the time for the completion was extended from January 1, 1927, to July 1, 1927, which was approved by the- resident engineer of the highway department.

• In passing upon the questions involved in this case, it should be remembered that the state and its training school, the city of Gatesville and Coryell county were all vitally interested in having said road constructed. The city had funds, and was willing to aid in constructing the part of said highway within its corporate limits. The state highway department had funds that could be applied to aid to the extent of 50 per cent, of the cost, but, in order for said funds to be so used, it was necessary that application therefor be made by the county. Article 6904½⅛ Vernon’s 1918 Supplement. The county had no funds that could be used on said work, but was in .position to secure said state aid to the extent of 50 per cent., if it could in some way take care of the other 50 per cent., and to accomplish this, and after much negotiation between the county and the city and between the county and the State Training School, the city placed in escrow $6,000 under a contract directing same to be paid to the county on completion of the road, and, when called for by the county, to be by it used in paying for said improvement.

The State Training School on its part agreed to furnish its tools, machinery, wagons, and teams, etc., and common labor at $1 per day while such labor was worth and could be scheduled at $2.50 per day, in arriving at the 50 per cent, to be paid by the highway commission. This was not concealed from .the highway commission, but was fully understood by all parties interested. So the county having, by means of the $6,000 put up by the city, and by reason of its getting the benefit of the cheap labor, teams, tools, etc., furnished by ■ the training school, arranged for its 50 per cent, of the cost of said work, made application to the state highway commission for an allotment for this project, which was granted. By reason of the county having no funds for said work, and by reason of the manner in which the county was to provide its 50 per cent, of the cost, it was fully understood by the county and the highway department that it could not be let to an outside party, and, if the work was done, it would have to be let to the county^ and it was also understood the county was not to make any profit.

As we view the case, it is not necessary to decide' whether or not the county had an enforceable contract with the highway department or with the city of Gatesville, or whether or not the contract of the county by its then commissioners with said county by its said commissioners and their successors in office, was enforceable. The commissioners’ court had jurisdiction of all roads in the county, and was charged by statute with the duty of improving and keeping same in repair. The net result of all said contracts and agreements was, if tiie county through, its then' commissioners or their successors in office would furnish the labor- and material and construct highway No. 93 extending from the public square in the city of Gatesville to the State Juvenile Training School, in accordance with the plans and specifications and detailed statement of the work, estimated to cost approximately $32,000, then said highway department would pay to the county as the work progressed 50 per cent, of the cost thereof; and the training school would give the county the benefit of its cheap labor, etc., as above stated; and the city of Gates-ville would pay over to the county the $6,000 placed in escrow when needed to pay for said work. It will thus be seen the county had authority to employ appellees to do said work, and the validity of such contract of employment was in no way dependent upon the validity of the contracts between the county and the highway department, or between the county and the city of Gatesville. The only purpose in referring to said contracts in the contract of employment of appellees was for a full description of the work to be done, and that there might be a clear understanding of the amount of money available for said work and the sources from which it was to be received by the county.

Neither do we think such contract of employment was void or voidable on the ground that it was made by an agent of the county with appellees, and not by the commissioners’ court as such court. The record discloses the commissioners’ court wanted ap-pellees to do said work, and, with this end in. view, by a formal order assigned its contract to appellees, and entered into a contract with them to do said work; but the highway department failed to approve this action of the court, whereupon the court by formal order canceled this contract, and ordered and instructed its county judge and Commissioner B. L. Morrison to “take immediate and such steps as may be necessary for and on behalf of this court to complete said project.” The amount of money available for the work, and how it was to be paid, every detail of the work, the material, character, and price of same, had all been fixed and agreed upon between the commissioners’ court and the highway department. There was nothing left to be done, except to employ some one to go forward with the work as specified, a purely ministerial act. In pursuance to the authority conferred upon them by the commissioners’ court, the county judge and Commissioner Morrison employed appellees. This employment was legal, and binding upon the county. Article 1580, Revised Civil Statutes 1925; Jackson, etc., v. Hutchinson (Tex. Civ. App.) 88 S. W. 412; Galveston Co. v. Gresham (Tex. Civ. App.) 220 S. W. 560 (writ refused) ; City Nat. Bank of Austin v. Presidio County (Tex. Civ. App.) 26 S. W. 775; Waterbury v. City of Laredo, 60 Tex. 519; Orange County v. Hogg et al. (Tex. Civ. App.) 269 S. W. 225. The county, represented by its commissioners’ court, knew appellees had been so employed on July 17,1926, and fully understood the terms of such employment, and permitted them to continue the work from July 19, 1926, to December 1, 1926, until the work was 75 per cent, comipleted. Under said employment paid them for all monthly estimates due, except the last one, without ever at any time objecting to such employment, and so said court thereby fully ratified the acts of its said agents in such employment. Boydstron et al. v. Rockwall County, 86 Tex. 234, 24 S. W. 272; Gussett v. Nueces County. et al. (Tex. Com. App.) 235 ,S. W. 857; Leon County v. Vann et al., 86 Tex. 707, 27 S. W. 258; Galveston County v. Gresham (Tex. Civ. App.) 220 S. W. 560 (writ refused); 21 C. J. p. 1190. .

Neither do we think, under the peculiar circumstances of this case, that the contract of employment of appellees by appellant was void because not let on competitive bid and bond furnished by appellees. As above stated, plans and specifications were prepared by the resident engineer covering every feature of the work to be done. This same engineer, who was a representative of the highway department, also prepared an itemized statement dividing the work into sixteen units, itemizing the amount, character, and cost of each item of labor, also the amount, character, and cost of each item of material- placed in the road complete, the entire cost being $32,945.55, all of which was approved by the highway department, and was attached to, and made a part of, the county’s proposal to construct said road, which proposal was accepted by the highway department. After the highway department failed to approve the assignment of this contract by the county to Burke, & Corbett, the county, through its county judge and Commissioner Morrison, employed appellees to take charge of said work for the county, at the same time explaining to them that the county had no funds, and was not to be out a dollar, but that the county would receive approximately $16,000 from the highway department and $6,000 from the city of Gatesville, showing them its contracts with said parties, and explained to appellees they would get the benefit of the cheap labor from the training school. So, with the understanding that the county would collect the amounts to be paid by the highway department and the city of Gates-ville, respectively, as per its contract with said parties, and pay same over to appellees, and give appellees the benefit of said cheap labor, appellees agreed to construct said road, under the direct supervision of the commissioners’ court, representing the county, and the resident engineer, representing the highway department, according to the plans, specifications, and detailed statement or schedule of amount^ character, and prices of labor, material, etc.

L. M. Stinnett, county judge, testified, in substance, that he told Mr. Corbett that he could not and woulil not receive any bid, and that, if he bid on the work, his bid would be rejected; that he explained to Mr. Oorbett that the county could not subcontract that job because the county had no funds in it, and it was unnecessary for him to bid on the job, so he did not bid, and did not offer to bid. The record also discloses that appellees offered to make a bond, but the county judge informed them he did not want a bond, that the county would hold back the $6,000 to be paid by the city in lieu of a bond. Article 236S, Revised Statutes 1925, provides:

“No commissioners’ court shall make a contract calling for or requiring the expenditure or payment of two thousand dollars or. more out of any fund or funds of any county or subdivision of any county, without first submitting such proposed contract -to competitive bids,” etc., and requiring a bond, etc. (Italics ours.)

But the facts of this case do not come within the purview of said statute. No county funds were to be used in said work. The county was not in position to let the contract on competitive bids, in that it had no funds that could be used in said improvement. The county needed no bond to protect its funds, for none were involved. The highway de-, partment and the city were furnishing the money. The highway department was protected, in that the improvement was required to be done under the direct supervision of its resident engineer, and in accordance with plans and specifications and detailed schedules prepared by him, and no payments were to be made, except upon estimates prepared by him and approved by its divisional engineer. The city was protected, in that no part of its $6,000 was to be paid until the work was completed and accepted. A bond to the county would have been useless, as it would have furnished no protection to the highway department nor to the city of Gates-ville, and the county needed no protection. Nor do we think the character of employment of appellees was that of contractor, but rather as employees. The county remained the record contractor. Every detail of the work and the cost thereof had been agreed upon between the county and the highway department and the county and the city, and $16,-000 set apart by the highway department and $6,000 by the city of Gatesville for the construction of said road.

We do not think the county could have been compelled to construct said road by either the highway department or the city of Gatesville, but, if the county did construct said road in accordance with its contract -with said parties, respectively, then each of said parties would have become liable to it for the amount promised to be paid. Of course, the county necessarily had to do the work through others, and its employment of appellees by verbal agreement was more in the nature of employees to assemble the necessary machinery, material, labor, and supervise and carry forward said work for the county, and under the direct supervision of the county through its commissioners and the highway department through its resident engineer. Wte do not think the employment of appellees under the facts of this case was void or voidable; there being no evidence in the record of fraud or collusion on the part, of any one connected with such employment. The county was not in position to obligate itself to pay unconditionally any sum to a contractor to do said work, but to pay only such sums as it expected to receive from the highway department and the city of Gatesville; hence we think the work was not competitive in its nature, and it is not doing violence to the statute to construe it to be limited to work that is in its nature competitive and not otherwise. Commissioners’ Court of Floyd Co. v. Nichols (Tex. Civ. App.) 142 S. W. 37; New York Cent. R. Co. v. Westchester Co., 173 App. Div. 263, 159 N. Y. S. 560; State v. Cass, 32 Ohio Cir. Ct. 208, 220; 15 C. J., p. 549, sec. 242.

Appellant contends, further, that the court erred in rendering judgment in favor of ap-pellees for $12,412.40, because the undisputed evidence shows that, if there was any contract between appellant and appellees, it was expressly provided and understood that appellant should not be liable for any amount. It is true, it was understood that the county had no funds to be used in building said road, and that the county was not to be out any amount. But it is also true the county employed appellees to build said road, and agreed that the $16,000 coming to it from the highway department and the $6,000 coming to it from the city would be paid to them, and, relying upon said agreement on the part of the appellant, appellees proceeded with said work, and, after appellees had continued said work from July 19, 1926, to December 1,1926, and had it 75 per cent, completed, and had incurred debts for labor and material to the amount of $8,085.58, and at a time when the county had in its possession a check from the highway department-for $3,707.98, which belonged to appellees in payment of the fourth monthly estimate on said work, the county judge, with the approval of the commissioners’ court, stopped appellees from going any further with said work, refused to pay appellees for the work they had done, refused to turn over the check which rightfully belonged to them, took charge of, and appropriated, their material on hand of the value of $1,294, and left appellees nothing, except an indebtedness of some $8,000 for labor and material used in building said road to 75 per cent, complete.

Of course, if the county had attempted to carry out its part of said contract, and had failed to pay oyer the amounts it had agreed to pay over because it was unable to e&llect said amounts from the highway department and the city, then it would not have been liable. But the highway department was faithfully performing its part of its agreement by promptly paying the monthly estimates as sent in, and the highway department, as late as June 4, 1927, indicated that they were still willing to pay their 50 per cent. The city of Gatesville has never refused to pay, but has signified its willingness to pay its part when called on by the county. The act of Coryell county, through its county judge, with the approval of the county commissioners’ court, in stopping appellees from said work, was a breach of its contract with appellees, for which the county is liable. Counties, by the provisions of our statutes (article 1572), aré bodies corporate and politic, and act by the commissioners’ court, composed of the county judge and the four commissioners. The acts of the commissioners’ court, done within the scope or apparent scope of the powers vested in it under the Constitution and laws, are the acts' of the county, and, where counties in their corporate capacities commit a wrong in relation to property, the county, like any other corporation or individual, may be held liable. Comanche Co. v. Burks (Tex. Civ. App.) 166 S. W. 470 (writ refused); Horn v. Matagorda County (Tex. Com. App.) 213 S. W. 934. The appellees had no other remedy. Not being parties to the contracts between the county and the highway department, and the county and the city of Gatesville, and the relation of employer and employee not existing between appellees and either the highway department or the city, appellees had no right 0⅜ action against either the highway department or the city. Appellees did not sue for damages or any contemplated profits, but sued and recovered for only the amount due for work actually done and material furnished, according to the terms of the contracts of the county with the highway department and with the city, and said amount recovered being the amount estimated to be due for work actually done, as estimated by the highway department through its resident engineer.

There is no contention that there was fraud in any of said transactions; that any funds of Coryell county have been, or sought to be, dissipated in any way; but Coryell county received .three miles of modern highway without cost of one cent to its taxpayers. It has received, and now holds, $3,708, which it refused to pay over to appellees. It stopped work on the contract and payment of money to appellees, thereby preventing them from receiving money with which to pay the laborers who did the work, and others who furnished- the material to build said road. 'The judgment of the court certainly does justice to all parties interested, in that it provides for the payment first of all claims for labor and material used in the construction of said road, which claims are numerous, and are adjudicated' by the court, and found to be correct, amounting in the aggregate to $8,085.58, and provides only the remainder shall be paid to appellees; and, as the highway department and the city of Gatesville has each at all times signified its willingness to perform its contract with the county, and pay the county as it agreed to do, it is reasonably certain the county could not suffei.', unless it be to the extent of the costs of this proceeding.

While we have not discussed all of appellant’s assignments, we have considered all of them, and, finding no reversible error, overrule same. The judgment of the trial court is affirmed.
      <S=»Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®=5For other cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


author: HICKMAN, C. J.

text:
    JONES COUNTY v. MOORE.
    (No. 384.)
    Court of Civil Appeals of Texas. Eastland.
    March 2, 1928.
    Rehearing Denied March 30, 1928.
    1. Counties <§=>146 — Highways <§=>120(4)— County is not liable at common law for negligence of its officer; hence allegation of negligence of county officers in diverting waterflow across highway was unnecessary and surplus-age in action for damages.
    In action against county for damages sustained to lands on account of water being diverted from its natural flow across a public road, allegation of negligence in petition was unnecessary and may be treated as surplusage, since a county is not liable at common law for negligence of its -officers in performance of official acts.
    2. Highways <§=>120(4) — Petition alleging dam- ' age to lands from diversion of water by public road held sufficient as against general demurrer (Const, art. I, § 17; Rev. St. 1925, art. 6730).
    In action against county- for damages to lands on account of water being diverted from natural flow across public road, based on Const, art. 1, § 17; Rev. St. 1925, art. 6730, petition alleging construction of road in such manner as to stop up natural drains held, sufficient as against general demurrer, without alleging that grading was done by order of commissioners’ court, such Order being unnecessary.
    3. Highways <§=>120(4) — Petition held not so insufficient as to leave it uncertain as to whether county or county judge and commissioners were- liable for damage.
    Where facts pleaded in petition alleging damage to lands on account of water being di<-verted from natural flow across public road showed liability of county which was expressly alleged, it was not insufficient for uncertainty as.to whether county or county judge and commissioners, who were alternately alleged liable, were liable'for acts complained of.
    4. Highways 120 (4) — Petition alleging damage caused by diverting water from natural flow across road held sufficiently specific as alleging nature of diversion.
    In action against county for damages to lands on account of water being diverted from natural flow across public road, petition alleging that natural drain crossed road at given point, but that dam was placed at such point’ and culvert at another given point, held, sufficiently specific as alleging nature of diversion.
    5. Appeal and error <S=»5I8(4) — Appellate court cannot consider abandoned answer.
    Answer which had been abandoned has no proper place in transcript; and cannot be considered by appellate court.
    6. Highways <§=^120(2) — Defective construction of ditch to carry off waters diverted from natural drains held immaterial as bearing on county’s liability for damages traceable directly to grading of road.
    In action against county for damages to lands on account of water being diverted from its natural flow across public road, liability on account of defective construction of ditch for purpose of carrj'ing off water held, immaterial, since damages were not based on fact of construction of ditch, but were traceable directly to grading of road and erection of dams across natural drain.
    7. Estoppel <⅜=>90 (4)— Landowner consenting to construction of ditch to carry off water diverted by road held not estopped to claim damages resulting.
    Landowner consenting to county’s constructing ditch along public road to carry off water diverted from its natural flow held, not estopped to claim damages resulting from such diversion of water on failure of ditch to carry it off properly.
    8. Counties <¾=>216 — Cause of action against county for damage was not barred until two years after rejection of claim by commissioners’ court (Rev. St. 1925, arts. 1573, 5524).
    Under Rev. St. 1925, art. 1573, requiring presentment of claims against county to commissioners’ court before bringing suit, cause of action against county for damages to land on account of water being diverted from its natural flow across public road was not barred by reason of limitation of article 5524 until two years after rejection of claim by commissioners’ court.
    9. Counties <⅜»225 — Judgment against county for damage to land on account of water being diverted from natural flow held erroneous in awarding execution (Rev. St. 1925, art. 1575).
    Under Rev. St. 1925, art. 1575, providing that no execution shall be issued on any judgment against county, judgment in action for damages to lands on account of water being diverted from natural flow across public road held, erroneous,-in so far as it awarded execution against county.
    10.Appeal and error 152 — Appellate court will reform judgment against county erroneously awarding execution (Rev. St. 1925, art. 1575).
    Where judgment against county awarded execution in violation of Rev. St. 1925, art. 1575, appellate court will not reverse case for such reason only, but will reform judgment in such particular.
    Appeal from -District Court, ■ Jones County ; W. R. Chapman, Judge.
    Action by W. B. Moore against Jones County. Judgment for plaintiff, and defendant appeals.
    Judgment reformed, and, as reformed, affirmed.
    Coombes & Andrews and E. V. Hardwick, all of Stamford, for appellant.
    Cox & Hayden and Frank E. Smith, all of Abilene, for appellee.
   HICKMAN, C. J.

The appeal is from a judgment in favor of appellee against appellant for $2,550 damages sustained to lands of appellee on account of water being diverted from its natural flow across a public road and caused to flow over appellee’s lands. Many of the assignments of error complain of the rulings of the trial court upon, exceptions to appellee’s petition, which makes it necessary to an understanding of our rulings thereon for us to state in this opinion, in substance, the allegations of the petition in so far as the demurrers attack the sufficiency thereof.

The case was tried on plaintiff’s fourth amended original petition, alleging that plaintiff complained of Jones county, a duly and legally organized county in the state of Texas, and certain named individuals, who composed the commissioners’ court at the time the injuries complained of occurred, as well as those who composed the court at the time of the filing of the petition. It alleged the ownership by appellee of a certain tract of land described therein upon which he and his family resided; that his cultivated land was practically level prior to the year 1924, at which time flood and rain water from about 300 acres of land adjacent thereto drained upon said land,' but, owing to the nature and topography of said land and drainage, the water, following its natural course did not concentrate at any particular place, and. did not injime or wash his land; that a public road about 50 feet wide runs north and south, along the west side of a portion of his land, and a public road about 50 feet wide runs east and west for several miles and intersects said north and south road about 200 yards north of the northwest corner of his land; that said roads are public roads, and were laid out and accepted by the defendant, Jones county, were situated in Jones county; and that the defendants, Jones county and the individuals named in the petition, had undertaken, and were bound to maintain same; that on or about March, 1924, the defendants did knowingly cause and have said public roads, which they were bound and undertook to maintain, graded and remain graded, so that deep ditches were cut on each side of said roads, and placed wooden culverts on said roads at different points particularly described in the petition, and did also, stop up certain natural drains across said roads at certain places particularly described, by reason of which a large quantity of water was diverted from its natural course; that said water was so diverted as to direct same from nine sections of land across that portion of plaintiff’s said premises situated in Jones eounty, so that a large volume of water that otherwise, in the absence of any grading, culverts and stopping up of natural drains, would have passed off in an easterly direction and to the north of his land through natural water courses, was caused to flow across and damage his land. The petition described the point where the water entered the land and the character of injuries resulting thereto by reason of the water flowing across it. Negligence was alleged in general in the construction of the culverts, dams and ditches.

It is further alleged that when said water was first diverted it entered plaintiff’s premises in the center of the west line of his cultivated land, flowing in great quantities through the center of same, and to his great damage; ' that in order to prevent said damages, and on or about January, 1925, he gave the defendant, Jones county, a right of way along the north side of the land above der scribed, for the purpose of constructing a ditch thereon to carry off said diverted water, so as not to injure his premises. The allegation is then made of the improper, inadequate, and faulty construction of this ditch, as a result of which water broke over the embankment thereto and flowed across his land. He admits in his pleading that he agreed with the defendant, Jones county, that it might construct a culvert southwest of the schoolhouse near the northwest comer of his lands, said agreement having been made with the understanding that the water would he carried off through the ditch to be constructed on the right of way which he gave the defendant. The admission is also made that he consented for the defendant, Jones county, to put the dams in the road adjacent to’ said culvert in order to drain water from both sides of the road and into said ditch, but that his consent was given with the understanding that said diverted waters would be carried off through said ditch. It is alleged that the claim had been presented to the commissioners’ court of Jones county, and had been by said court disallowed. The allegation is made that Jones county is liable for said damages, but, if said county is not liable, then the individual defendants are jointly and severally liable.

There are many allegations in the petition seeking to show plaintiff’s right to an injunction, but since a special, exception was sustained to the petition in so far as same sought an injunction, and since no injunction was granted, we will not detail the pleadings covering this phase of the case.

It is urged by appellant that the petition was bad as against a general demurrer. One of the particulars in which its insufficiency 4s challenged is that it did not allege that the grading of the road was done by the road overseer or by order of the commissioners’ court. The case of Nussbaum v. Bell County, 97 Tex. 86, 76 S. W. 430, is cited and relied upon as authority for this contention. We think appellee’s petition supplied the allegations lacking in the petition in that case. The allegation of negligence in the petition was unnecessary, and may be treated as sur-plusage. A county is not liable at common law for the negligence of its officers in the performance of official acts. Harris County v. Gerhart, 115 Tex. 449, 283 S. W. 139. Nor is it liable for the acts of its officers, where such acts are not performed in connection with their official duties. Nussbaum v. Bell County, supra. The liability of a county for damages in actions of this character is based upon article 1, § 17, of the Constitution, providing that no person’s property shall be taken, damaged, or destroyed for or applied to public use, without adequate compensation being made, unless by the consent of such person, or upon article 6730 of the Revised Statutes of 1925, which reads as follows:

“Drains. — The earth necessary to construct a causeway shall be taken from both sides, so as to make a drain on each side thereof. Whenever it is necessary to drain the water from any public road, the overseer shall cut a ditch for that purpose, having due regard for the natural water flow, and with as little injury as possible to the adjacent land owners. In such eases the commissioners court shall cause the damages to such premises to be. assessed and paid out of the general revenues of the county, and in case of disagreement the same may be settled by suit as in other cases.”

The petition in this case is sufficient to allege that this damage was caused by the county in the discharge of its duty to grade and maintain its public roads, which roads it had undertaken and was bound to maintain. No further allegations in that regard were required. It was not incumbent upon plaintiff either to allege or prove that the grading was done by order of the commissioners’ court. No order of the commissioners’ court is required by law for the grading of a road.

It is urged that the petition is insufficient, in that the allegations leave it uncertain as to whether the county or the county judge and commissioners were liable for the acts complained of. The case of Nussbaum v. Bell County, supra, is cited in support of this argument. We cannot sustain this contention. In the cited case the allegations were not sufficient to show liability as to either the county or.the individuals named. In the instant case the facts pleaded show liability of the county, which is expressly alleged, followed by the alternative allegation of liability of the other defendants. There is no rule of pleading violated by máking allegations in this manner. All of the assignments complaining of the action of the trial court in overruling the general demurrer are overruled.

By a special exception appellant challenged the sufficiency of the petition and its allegations as to how the grading was done, culverts placed, and drains stopped, insisting that such allegations were too general to inform appellant of the character of proof which would be relied upon in support thereof. We think the petition went into this matter in great detail. It alleged the distances of each culvert from a given point, and likewise the distances of each dam and drain from the same point. The complaint seems to be that, while the petition did allege certain definite points where culverts were placed and where natural drains were closed, and that by calculation it could be determined that these points did not coincide; yet there is no specific allegation that these points did not coincide and no allegation that the failure of such points to coincide caused the damages. We cannot sustain this contention. A petition which alleges that a natural drain crossed a road at a given point, but that a dam was placed at that point and a culvert placed at another given point, is certainly specific enough to allege how water was diverted from that natural drain.

The eighth proposition contained in the brief cannot be sustained because it calls for a consideration of an abandoned answer of the defendant, which was not introduced in evidence. This answer has no proper place in. the transcript and cannot be considered by us.

The facts disclose that a large quantity of water was diverted from natural drains and caused to flow down the public road adjacent to appellee’s land; that appellee, in order to protect his property from the damages that would result thereto on account of the condition thus brought about by the county, gave to the county a right of way across the north line of his land, so that it could construct a ditch across same to carry off this water, and in that way prevent the damage to his land. This ditch was constructed, but did not serve its intended use. Assignments are contained in the brief based upon the theory that no liability could rest upon the county on account of the defective construction of this ditch, as it was not dug to drain the road, but to protect appellee’s property. Various assignments relating to this phase of the case are contained in the brief. We do not regard these assignments as being material to a decision of this case. The evidence justifies the conclusion that appellee’s land suffered no more injuries than it would have suffered had that ditch not been constructed. The evidence indicated that the ditch reduced the amount of his injuries. Had the ditch served the purpose intended, no damages would have resulted to appellee, but since it did not serve its purpose fully, damages did result. These damages are not based on the fact of the construction of this ditch, but are traceable directly to the grading of the road and the erection of dams across the natural drains leading off from the road. Wle therefore conclude that no error is presented by any of the assignments relating to the construction of this ditch.

A large section of appellant’s brief is devoted to the proposition that appellee consented to the dqing of every act complained of in its petition, and that, having consented thereto and procured the doing thereof, he is estopped to assert any damages. This contention is not supported by the evidence. Ap-pellee did consent to the construction of the ditch across the north line of his land and to the culverts and dam at the schoolhouse near his place; but we find no evidence that his consent extended any further than that. The evidence would support the conclusion that a condition had been brought about by the county, the only result of which would be to destroy appellee’s land, and that appellee consented to the doing of such things as it was thought would remedy the situation which confronted him. No element of estoppel arises from facts of that nature, and the case of City of Texarkana v. Talbot, 7 Tex. Civ. App. 202, 26 S. W. 451, and other like cases cited and relied upon by appellant, have no application.

The two years’ statute of limitation is interposed as a bar to appellee’s right of recovery. The petition alleged that the grading complained of was done a little more than two years' prior to the filing of appellee’s original petition, and the argument is made 'that limitation began to run, not from the time when appellee’s land sustained its first injuries from overflows, but from the date of the completion of the grading, and that ap-pellee’s cause of action was therefore barred when his suit was filed. It is unnecessary to a determination of the question of limitation for us to express an opinion regarding the question raised in appellant’s brief, because the assignments must be overruled on another ground, atyout which we think there can be no question.

By article 1573, R. S. 1925, it is provided that no county shall be sued unless the claim apon v/hich such suit is founded shall be first presented to the commissioners’ court for allowance, etc. This statute is applicable to claims lite the one upon which this suit is based. Morgan v. Oliver, 60 Tex. Civ. App. 210, 129 S. W. 156; Stringer v. Franklin County, 58 Tex. Civ. App. 343,123 S. W. 1168; Bitter v. Bexar County (Tex. Civ. App.) 266 S. W. 224.

By article 5524, R. S. 1925, limitation begins to run when the cause of action accrues. By “cause of action” is meant the right to institute suit. Port Arthur Rice Milling Co. v. Beaumont Rice Mills, 105 Tex. 514, 143 S. W. 926, 148 S. W. 283, 150 S. W. 884, 152 S. W. 629; Deaton v. Rush, 113 Tex. 176, 252 S. W. 1025; 37 C. J p. 807, § 152.

Appellee’s right to institute suit in this case did not accrue until after his claim had been rejected by the commissioners’ court, and two years did not elapse after such rejection before suit was filed.

The judgment in this case awards execution against the appellant, Jones county. This is assigned as error. Article 1575, B. S. 1925, provides that no execution shall be issued on any judgment against any county. The judgment was erroneous in awarding execution. Trinity County v. Polk County, 58 Tex. 321; Kaufman County v. Gaston (Tex. Civ. App.) 273 S. W. 273.

However, this is no ground for reversing the case, but we have the authority, and it is our duty, to reform the judgment in this court in that particular. Trinity County v. Polk County, supra. It is therefore our order that the judgment of the trial court be so reformed as to exclude the provision for . execution, and, as reformed, that it be affirmed.
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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