author: RASBURY, J.

text:
    HEADLEE et al. v. FRYER, County Judge, et al.
    (No. 8151.)

    (Court of Civil Appeals of Texas. Dallas.
    Nov. 23, 1918.
    Rehearing Denied Jan. 18, 1919.)
    1. Counties @=>117 — Contracts — Commissioners’ Court — Competition—Statute.
    Under Acts 35th Beg. c. 141 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 2268a, 2268b), forbidding certain contracts by commissioners’ court except upon notice inviting competition, the court must be prepared to present to bidders some independent and concrete statement of work required to be done and must take such steps as are reasonably and fairly calculated to carry out the act.
    2. Statutes @=>183 — Construction — Intention.
    A statute is to be extended to cases not within the words but within the purpose thereof, as a thing within the intention of the legislators is as much within the statute as if it were within the letter.
    3. Statutes @=>181(1) — Construction — Duty of Court.
    While it is for the Begislature to make a law, it is the court’s duty to “try out the right intendment” of statutes upon which they are called to pass and to ascertain and enforce them according to their intendment.
    4. Counties @=>116 — Contracts — Duty of Commissioners’ Court — Statutes.
    Under Acts 35th Beg. c. 141 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 2268a, 2268b), forbidding commissioners’ court to make certain contracts except upon notice inviting competition, the court, which on the day advertised for receiving bids and upon adjournments resolved to erect a courthouse, employed an architect, adopted his tentative plans, and contracted for its construction subject to modifications, did not comply with the statute.
    5. Counties @=>117 — Contracts — Publication of Notice of Intent to Void Contract.
    Under Acts 35th Beg. c. 141 (Vemon’s Ann. Civ. St. Supp. 1918, arts. 2268a, 2268b), forbidding commissioners’ court to enter into certain contracts except , upon notice inviting competition, where published notice inviting bids on February 14th, but where recorded copy thereof fixed the date as February 4th, an award of contract on February 13th did not comply with statute, and contract was void for want of notice.
    6. Counties <§=>53 — Records oe Commissioners’ Court — 'Verity.
    The verity of proceedings of commissioners’ court, as disclosed by its minutes, may not be challenged by t'estimony of a commissioner indicating the court’s intent that an approved minute entry should provide for receiving bids for county work on a certain day, as stated in the minutes, as the court, being a court of record, speaks through its minutes.
    7. Counties <§=>53 — Commissioners’ Court-Amendment oe Record.
    The proper way to amend the minutes of the commissioners’ court when they fail to speak the truth is by motion made in that court, and not by allegations and proof in another tribunal in which a litigation concerning its orders may arise.
    8. Counties <§=^>127 — Contracts—Modification — Power oe Commissioners’ Court.
    The commissioners’ court, having authority to contract for construction of courthouses, etc., subject to Acts 35th Leg. c. 141 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 2268a, 2268b), requiring them to invite competition if cost is $2,000 or more, in absence of constitutional or statutory prohibition, may make necessary changes in details by which price is increased or diminished.
    9. Counties ⅞=»50 — Contract — Construction oe, Courthouse — Delegation oe Powers bi Commissioners’ Court.
    A contract by commissioners’ court of a county for the construction of a courthouse in effect making the contractor its agent, with authority to parcel out the contract to subcontractors and thereby releasing him from all liability thereon, was void, because delegating the court’s powers.
    10. Counties ⅞=»123 — Contracts—Contractor’s Bond — Statute.
    Vernon’s Ann. Civ. St. Supp. 1918, art. 6394f, requiring one contracting with a county to execute a penal bond with security conditioned to pay for labor, material, etc., is mandatory, and- the commissioners’ court has no authority to release a contractor from the execution of such bond.
    11. Counties <§=>165 — Contract—Bonds or Warrants.
    Evidence of indebtedness of a county to a contractor in form of negotiable bonds' with interest coupons attached, for construction of a courthouse, but designated “County Courthouse Warrants,” in view of minutes of commissioners’ court disclosing its intention, were warrants and not bonds.
    12. Evidence <§==>65 — Presumption oe Purchaser’s Knowledge oe Law.
    Á purchaser of what purports to be county bonds is presumed to, know the provisions of the law authorizing their issuance and is required to examine into the steps taken by the commissioners’ court in that respect, whether referred to on face of the bonds or not.
    13. Counties <§=>123 — Contracts — Bond-Statute.
    Though Vernon’s Ann. Civ. St. Supp. 1918, art. 6394f, requiring a contractor with a county to give a bond conditioned to pay for work, material, etc., before commencing work, is mandatory, there is no objection to deferring its execution to a time prior to beginning the work.
    14. Counties <§=>122(1) — Contracts—Submission to Inspector oe Public Buildings — Statute.
    Acts 34th Leg. e. 148 (Vernon’s Ann. Civ. St. Supp. 1918, arts. 6394dd — 639'4dddd), requiring the inspector of masonry, public buildings, and works to inspect the plans, etc., of public buildings, does not require county officials to submit plans to inspector, though requiring them to forward his fees, but failure to conform thereto would not invalidate a contract in other respects valid.
    Appeal from District Court, Freestone County; A. M. Blackmon, Judge.

    Suit by E. Headlee and others against G. W. Fryer, County Judge, and others as members of the Commissioners’ Court of Freestone County, and others. Interlocutory injunction granted pending further orders, motion to hold defendants in contempt of such order denied, and injunction dissolved; and plaintiffs appeal.
    Judgment dissolving the interlocutory injunction .reversed, and cause remanded.
    A. B. Geppert, of Teague, W. J. Bryant, of Wortham, and Richard Mays, of Corsicana, for appellants.
    O. S. Bradley, of Groesbeck, and Callicutt & Johnson, of Corsicana, for -appellees.

      Writ of error dismissed March 19, 1919.

   RASBURY, J.

Appellants, citizens and taxpayers of Freestone county, commenced this suit in the 'court below against the county judge and the other members of the commissioners’ court, the county tax assessor and collector, the treasurer, auditor, and W. A. Myrick and A. B. Ayres, for the purpose of declaring void and unenforceable and to enjoin pendente lite the execution of a contract entered into by the commissioners’ court with W. A. Myrick and A. B. Ayres, by which Myrick. in consideration of $200,000, agreed to construct a courthouse <for the county, and by which Ayres was to act as architect for the county in that connection; and to also hold as void and illegal the tax levied to meet the expense of said building. Upon presentation in chambers to Hon. A. M. Blackmon, the district judge, and by consent of all parties, interlocutory injunction was granted pending further orders of the court. Subsequently, on motion to dissolve, a further hearing in, chambers was had, including, a hearing upon a motion to hold appel-lees in contempt of the interlocutory order. At such hearing the motion to hold in contempt was denied, the interlocutory injunction dissolved, and costs awarded appellees. From the proceedings detailed, this appeal is taken.

The facts, in our opinion, which control the disposition of the case, are not in substantial controversy and, briefly stated, are these: There was more or less discussion among officials and some of the citizens of Freestone county concerning whether the existing courthouse should be repaired or an entirely new building erected. The matter crystallized when the commissioners’ court requested the state inspector of masonry, public buildings, and works to examine and report the condition of the existing courthouse. On December 18, 1917, an assistant to the inspector, who had been detailed to make the examination, reported in substance that the building was unsafe, and that, while it was possible to repair same, it would be expensive to do so, would reduce the size and mar the appearance of the building, and for which reason he recommended the abandonment of the building and the erection of a new one. Subsequently some one, whom the evidence fails to disclose, but we assume some member of the commissioners’ court, prepared a form of an order for entry upon the minutes of the court dated January 15, 1918, reciting the condemnation of the courthouse building by the state inspector, etc., and that a necessity existed for the “construction, repair and improvement” thereof, and that the cost of such “construction, repair, and improvement” would exceed $2,000, and directing the county auditor to give notice that the commissioners’ court would receive competitive bids for the “construction, repair, and improvement” of the courthouse in the office of the county judge at Fairfield, the county seat, on February 4, 1918; such notice to be published for 14 days prior to the date set “for letting of the contract.” The order so prepared was signed by the county judge and the four commissioners, but was not signed or adopted in open court according to the testimony of the only commissioner who testified. The order as written was not recorded in the minutes. One precisely similar, save in one respect, was recorded; the difference being that in the one recorded it was recited that bids would be received in the office of the county judge on February 14, 1918, whereas the form signed in advance of the entry recited that bids would be received February 4th. The notice published by the county auditor in the Fairfield Recorder, a newspaper published in Fairfield, the county seat, recited that the commissioners’ court would receive competitive bids for the “construction, repair, and improvement” of the courthouse February 4, 1918, and was published 14 days prior to that date. On February 4, 1918, Ayres of San Antonio, Page of Austin, and Linebaugh of Dallas, all architects, appeared before the commissioners’ court with plans and drawings of proposed courthouses, and each was invited to and did submit what they had to the commissioners’ court. Due to the fact that February 4th was not during regular term, the court, after inspecting the plans, invited the several parties to return on February 11, 1918, which would be the commencement of a regular term of the court, at which time it would be determined whether to repair or remodel the existing building or dismantle it and construct an entirely new building.

On February 13, 1918, and at a regular term of the commissioners’ court, proposal to construct a new courthouse was submitted, whereupon Commissioners Terry and Roberts and County Judge Fryer voted for, and Commissioners Bryant and Lindley against, the proposal. The proposal having received a majority of the votes, it was ordered that the court “receive bids and enter into contract for the erection of a new courthouse.” By the same vote, A. B. Ayres was selected as architect for the county over C. H. Line-baugh'. On the samé day bids in that respect were submitted by W. A. Myrick and W. L. Pearson & Co., the bid of the former being accepted, whereupon, County Judge Fryer entered into formal contract, based upon a tentative synopsis of specifications and pencil sketches of floor plans and a drawing of the building, with W. A. Myrick, whose bid was also lowest, to construct a new courthouse for the contract price of $200,000, which was on the same day and at the same time ratified and approved by the commissioners’ court, and also adopted and entered upon the minutes a resolution authorizing the members of the commissioners’ court to visit such courthouses in the state as it deemed “helpful in deciding upon and adopting final plans and specifications,” etc. Shortly after the action detailed, the members of the court departed and inspected courthouses at Kingsville, Brownsville, and San Antonio. Upon their return, and while in special session on April 18, 1918, the commissioners’ court, with the consent of -the contractor, ordered certain alterations changes, and modifications in the contract, plans, and specifications theretofore adopted, omitting work and material of considerable importance, which reduced the contract price $64,435. It was also provided by the final contract that other changes could be made in the plans by agreement of the parties, and if the changes caused additional cost and the parties disagreed in reference thereto, the architect should finally decide the issue. As changed, modified, and altered, and after adopting final and complete plans and detailed specifications, the contract was by the court “ratified, approved, and confirmed.”

There are numerous points presented by appellants. We will not, however, consider them separately and. in the order presented, but confine ourselves to the issues deducible irom the several points.

Of importance in the case is the contention of appellants that the contract Awarded to Myriek was not submitted to competitive bids in compliance with law. This contention is based upon a recent act of the Legislature regulating the manner of letting contracts by the commissioners’ court. Gen. Laws, 35th Leg. c. 141, p. 349 (articles 2268a, 2268b, Vernon’s Sayles’ 1918 Supp. Oiv. St.). Said act provides, in substance, that the commissioners’ court shall not enter into any contract requiring the expenditure of $2,000 or more out of the funds of the county or any subdivision thereof without first submitting such contract to competitive bids, after publishing for two weeks in a newspaper published in said county the time and place when and where the contract will be let, or, if there be no newspaper published in the county, by posting notice thereof at the courthouse door of such county for 14 days prior to the time of letting suet contract; and that a contract made without compliance with such provisions shall be void and unenforceable, performance of which or the payment of any money thereunder may be enjoined by any citizen of the county. There are other provisions of the act relating to the manner of letting the contract in case of public calamity or urgent necessity, etc., none of which are of importance under the facts disclosed by the record in the present case.

The first point made is that the act contemplates that, before the commissioners’ court shall enter into any contract for or in 'excess of $2,000, it must definitely determine before inviting bids the character of the improvements contemplated, which in the present case would be to adopt plans and specifications of the proposed building. Appellees contend that since the act does not specifically prescribe what preliminary steps shall be taken before submitting the contract to competition, but leaves shch matters for the judgment and discretion of the commissioners’ court, what was done substantially attained the object sought. The act, it will be observed upon examination, is at most a bald requirement that no contract involving the expenditure of $2,000 or more shall be let save upon notice inviting competition. It means as much' and certainly no less than that every contract, into which the county by its officers proposes to enter with another for whatever purpose, shall, if the amount be $2,000 or more, be submitted in the manner directed to competition. What steps county officials shall take in advance of the day set for submitting the contract the act does not undertake to specify. What is sought and required is obviously competition. It is left to the officials to present the matter in such form as to secure the desired end. That it is their duty to do so will not be denied. That being true, it occurs to us that they are put to the necessity of being prepared to present to those who may appear to bid upon the contract some intelligent and concrete statement of the work required to be done or the structure to be erected as would tend to induce competition, depending in every instance upon the character of the undertaking. Otherwise, there would be no competition, and as a consequence the purpose of the Legislature defeated. For it can hardly be denied there could and would be no bids received, at least in good faith, in the absence of some specification of what the county required to be done or furnished by prospective bidders on a contract requiring the expenditure of such a large sum. That some stfeh step on the part of the county officials was contemplated is a necessary deduction from the act requiring them to submit all such contracts to competition. Certainly responsible contractors are not going to undertake the financial liability involved in so important a matter as constructing a county courthouse without first being precisely informed what is required by the county particularly when it is commonly known that intelligent bids are out of the question in the absence of such information. The most ordinary prudence would require in such cases considerable particularity.

It is an old rule that statutes are to be construed with reference to the object intended ‡0 be attained, and that they should be given that construction which is best calculated to advance such1 object. The rule is statutory in our state. Article 5502, Vernon’s Sayles’ Oiv. Stats. To be sure, if the meaning of the law is plain and unambiguous, there is nothing left for construction; and, while we have said that the present law is a bald statement that no contract shall be let without inviting competition thereon, it does not follow that the steps to be taken to secure competition before submitting the contract are equally as plain as that requirement, and to hold that steps which fail to secure competition are sufficient because the Legislature failed to prescribe precise steps to be taken would lead to absurdity. The rule is to extend the statute to cases not within the words, but within the purpose thereof. 36 Gyc. 1108. “A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter.” State v. Delesdenier, 7 Tex. 76 (105). “While it is for the Legislature to make the law. it is the duty of the courts to ‘try out the right in-tendment’ of statutes upon which they are-called to pass, and by their proper' construction to ascertain and enforce them according to their true intent. For it is this intent which constitutes and is in fact the law, and not the mere verbiage used by inadvertence or otherwise by the Legislature to express its intent, and to follow which would pervert that Intent.” Russell v. Farquhar, 55 Tex. 355; Mclnery v. Galveston, 58 Tex. 334; Edwards v. Morton, 92 Tex. 152, 46 S. W. 792. Much more could be said upon the subject and many other authorities cited in support of the rules briefly stated, but what has been said is suffleient to support our conclusion that it was the duty of those charged with the enforcement of the law to take such sieps as were reasonably and fairly calculated to attain the purpose intended by the act.

The precise question, then, is: Did ap-pellees, the county officials, prior to the day set for receiving bids and prior to letting the contract to Myrick, take such preliminary steps as would attain the object sought by the Legislature? In our opinion they did not. The facts in that respect are without controversy and are established in the main by orders spread upon the minutes of the commissioners’ court, supplemented by the testimony of the county officials. These facts have been recited at another point in this opinion. They disclose that on February 4th, the day set for receiving bids (which appellants assert to be erroneous and which we will later discuss), the time was taken up in examining proposed plans of the architects for a new courthouse and for repairing the old one. No bids by contractors were presented that day, save one by Brielhart for repairing the old building. February 4th not falling within a regular term of the court, those present were invited to return at a subsequent day during regular term, at which time the officials would determine whether to repair the old building or construct a new one. Accordingly, on February 33th, during term time the court resumed consideration of the matter. First, they declared in favor of building a new courthouse and employed an architect in that connection. Next, the court adopted tentatively certain general specifications, floor plans, and exterior of building offered by Ayres, the architect whom they had employed. Based upon these general specifications and floor plans, they then entered into contract with Myrick for the construction of the building ■outlined subject to changes, modifications, and alterations on their return from inspecting other courthouses for which the court at the same time arranged. As we have shown, the inspection was made, and on April 18th, following, Ayres furnished complete and detailed plans and specifications which were adopted, and thereupon, after altering, modifying, and changing Myriek’s contract to comport with the final plans and deducting $64,435 from the original contract price, it was ratified, approved, and confirmed. It thus appears without contradiction in the evidence that at no time was the contract submitted to competition. For if it may be said that the proposed plans suggested generally by Ayres, which were tentatively agreed upon on February 14th, were substantially the steps contemplated by the act cited and were sufficient to intelligently bid upon, yet bids thereon were not invited, for simultaneously with their adoption the contract was awarded to Myrick. If, upon the other hand, it is held that the county officials never reached a conclusion that would put them in position to invite competition until April 18th, and it occurs to us that that conclusion indubitably follows, the same result is reached, since it is also without dispute in the evidence that, when final plans and specifications were prepared by the architect employed by the county, the contract with Myrick was made to conform to the ultimate conclusions of the court and as so modified at once approved, ratified, and confirmed. This we think must in fairness be conceded without regard to the utility of the plans adopted or the economy of the price or the motives which controlled those upon whom the responsibility rested.

The second point urged under the general proposition is, in substancel: (1) That there was, in effect, no publication inviting competitive bids, and (2) if there was, that then the contract was let prior to the date set for receiving same,'and as a consequence the contract with Myrick is void. The foregoing contention is based upon the conflict between the form prepared and adopted by the full court and the minutes as recorded, signed, and approved. As we have shown in our statement of the facts of the case, the form directed the auditor to give notice that bids would be received on February 4th, while the order actually entered upon the minutes directed the auditor to give notice that bids would be received on February 14th. The publication did not follow the minutes, but did follow the form. The contract according to the county’s contention was let February 13th, or one day prior to the day designated by the minutes.

Appellees contend that obviously mistake was made in transcribing the order upon the minutes, and since it does not appear from the record that any injury resulted therefrom and that the architects appeared in conformity with the published date, the issue is immaterial. While the facts are as asserted, we are unable to agree, in the light of the provisions of the act, that only an immaterial issue is presented. On the contrary, we are forced to the conclusion that the contract is void because there was no notice given at all in a legal sense. The act requires the publication of notice of the intention to award the contract, either in a newspaper or by posting notices at the courthouse door. It does not, in precise terms, require that an order or resolution to that effect be adopted by the commissioners’ court, and spread upon the minutes, but the commissioners can proceed, in no other manner, since that court is required to record upon suitable books the proceedings of each term of court, which are in turn required to be read over and signed by the county judge or the member presiding and attested by the clerk. Article 2276, Yernon’s Sayles’ Stats. All authority exercised must be evidenced in that manner. The authority was so exercised and evidenced in the present case in reference to publishing the notice inviting bids. The reason for the requirement is obvious and need not be discussed. The day for receiving bids, according to the minutes, was fixed as February 14th, and we cannot assume that another date was intended, if to do so results in denying the verity of minutes, and according to authority presently referred to even mistake in the entry of the minutes could not be shown in a proceeding like the present one. Proof was offered and admitted to explain the conflict between the minutes and the public notice, which was objected to and which we think should have been excluded. S. L. Bryant, one of the commissioners, testified that he signed the order which the court intended should be entered upon the minutes in the courtroom in the presence of Mr. Terry, also a commissioner, before court was convened, but that he did not see any of the other commissioners sign same. While Bryant’s evidence may suffice to indicate that the commissioners intended that the entry actually made on the minutes and approved by them should provide that bids would be received on February 4th, although we doubt the validity of the order for any purpose, since it appears not to have been adopted in open court, yet, as we have indicated, the verity of the acts and proceedings of the commissioners’ court, as disclosed by its minutes, may not be challenged in such manner. “The commissioners’ court is a court of record and speaks through its minutes and not by the mouths of the members of the body. The proper method to amend the mihutes when they fail to speak the truth is by a motion made in that court, and not by allegation and proof in another tribunal in which a litigation concerning its orders may arise.” Gano v. Palo Pinto County, 71 Tex. 99, 8 S. W. 634; \Rankin v. Noel, 185 S. W. 883. While the attempt to attack the minutes of the court in the case cited was made by one suing the county the rule, it occurs to us, which forbids an outsider to thus attack the minutes, applies with like, if not greater, force to members of that court. It follows then that the commissioners’ court having adjudged that it would receive bids on February 14th, and having failed to make publication of that fact, there was in the legal sense no publication at all, and, there being no publication at all, the fact that bidders did attend and no injury resulted is of no consequence, since by the act every contract let without publication is void. Otherwise, the purpose of the Legislature could in every similar case be defeated by showing that no injury resulted. The lawmaking authority has decreed that the publication shall be made in any event, and while it may appear in this case that what was intended has been accomplished, we feel that that fact will not warrant us in sweeping aside the vital requirement of the law.

The claim is made that the modifications, changes, and alterations in the contract made by the commissioners’ court on April 18th constituted in law a novation, and as a consequence the substituted contract was void because entered into without giving the required notice. 'The modifications in the original contract were considerable and consisted in the main of omissions of items from the original plans, such as sinking a well, omitting furniture for the new •courthouse, substituting plaster and wood trim for marble, cement for tile floors, pine for hardwood, omitting the plumbing, heating, electric wiring, sewage, and lighting plant, for which a deduction in price of $64,-435 was made. Also other changes mutually agreed to or when directed by the architect could be made by which the cost of the building could be increased or decreased. The commissioners’ courts of this state have authority by contract or otherwise to construct courthouses, etc., save where limited by the taxing power in the amount expended, and it is their right and privilege to determine whether the structure shall be built, its cost, character, etc., subject now of course to the construction to be placed upon the act herein referred to with reference to inviting competition when the cost exceeds $2,000 or more. Stratton v. Commissioners, etc., 137 S. W. 1170; Commissioners v. Nichols, 142 S. W. 37. Such rule would seem, in the absence of constitutional or statutory prohibition, to carry with it authority on the part of the commissioners to make necessary changes in details by which the price was increased or diminished accordingly; but that authority may not be exercised by architects, agents, engineers, etc., since that would be a delegation of the authority conferred upon the commissioners. 15 C. J. 555. The authority cited, however, goes a step further and declares the general rule to be that the commissioners can in no event “make important general changes in the plan of the building.” That rule, however, does not comport with our statute which confers the general authority “to provide and keep in repair court houses, jails and all necessary public buildings.” Article 2241, subd. 7, Vernon’s Sayles’ Civil Stats. We therefore conclude that the commissioners’ court was authorized- to make the changes they did make in the contract, but that they were without authority to confer upon the architect power to make changes or increase the cost or to make his decision in any such matters controlling.

The contention is made by appellants, in substance, that by the contract with Myrick the county in effect made him its agent with authority to parcel out the contract to subcontractors and thereby relieve him of all liability thereon, and is hence void because a delegation of the powers of the county officials. The contention is based upon clause 5 of the contract, which provides in substance that before beginning work Myrick shall execute bond, the condition of which is not specified, but that he may, with consent of the commissioners, sublet '“all or any part” of the work or furnishings specified to subcontractors, who shall enter into bond fixed by the commissioners and payable to Freestone county, such bonds to be “taken and accepted in lieu of bond of W. A. Myrick, who shall not be required to make bond.” While the provision stated does not confer upon Myrick unrestricted authority to sublet the work at his will, since he may do so only with the consent of the commissioners, yet it can hardly be denied that it was contemplated by the county that he might sublet the entire contract, since to sublet all or any part of the contract means no less than that. Such purpose is emphasized by the further provision that, if he does sublet all or part of the work, he is released from giving the bond required by law, which is but to say that he is not bound on the contract, but the subcontractors are, and which warrants the further deduction that a contract binding upon Myrick was not contemplated nor shown by the provisions of the one he signed, and at least that he is as much the agent of the county as its contractor. In any event, whatever may be the legal result of such provisions, it may not be denied that the commissioners were without authority to release Myrick from execution of bond. Every person, firm, or corporation contracting with any governmental subdivision of the state for the construction of any public building or work shall, before commencing such work, execute the usual penal bond with good security, with the additional obligation that such contractor shall promptly pay all persons supplying labor and material for the work, together with other provisions unimportant to the isspe under discussion. Article 6394f of Vernon’s Sayles’ Oiv. Stats. The purpose of the requirement we need not discuss, though obviously a commendable measure as relates to the public interests and one of just protection to those who furnish labor and material on such buildings. It is mandatory and, as we construe the statute, must be complied with. That the contract contemplates that the contractor may be released from giving the bond is not to be denied. That he may not be able to sublet all or part of the contract, and hence will have to give the bond, is no more to be presupposed than that he will.

It is claimed that the evidence of the indebtedness of the county to Myrick and the interest coupons attached thereto for the agreed price to be paid for the courthouse, while designated warrants, in form and on their face purport to be and are negotiable bonds, and hence void for various reasons. The reasons are sound if the evidence of indebtedness be bonds. While the instruments in many respects take the form of and are couched in the language of bonds or negotiable obligations, they are designated and purport to be “Freestone County Courthouse Warrants.” The minutes of the commissioners’ court disclose that that court created a special courthouse warrant fund, designated “Class 1,” out of the 23 cents constitutional public improvement fund of the county, to be used in payment of the principal and interest of the ^warrants, and for the purpose of raising money with which to pay the interest on the warrants and create a sinking fund to retire the debt, a tax of 22 cents on each $100 of valuation of taxable property in the county was levied for the current year, and so much for each succeeding year as was necessary while said warrants were outstanding, to be annually assessed, collected, and applied for-said purpose. It thus seems clear that' the intention and purpose of the commissioners was to issue warrants, and that the form of the warrants could not mislead any one into the purchase of same as bonds or involve the cpunty in any greater liability than that attached to warrants, since the rule seems to be that a purchaser of what purports to be county bonds is presumed to know the provisions of the law authorizing their issuance and required to examine into the steps taken by the commissioners’ court in that respect whether referred to on the face of the bonds or not. Ball, Hutchings & Oo. v. Presidio County, 88 Tex. 60, 29 S. W. 1042; Mitchell County v. Bank, 91 Tex. 361, 43 S. W. 880. By the authority cited, purchasers of the bonds are required to inspect the order of the commissioners’ court authorizing the issuance of the indebtedness. That order will disclose the debt to be warrants and destroy any defenses of a purchaser who assumed them to be bonds. Being warrants, the commissioners took the steps necessary in that respect by levying the tax within the constitutional limit, with which to pay the interest and create a fund for their retirement.

As shown in our statement of the facts on the question of whether the courthouse should be constructed, two of the commissioners voted aye and two no. County Judge Fryer decided the question by voting aye also. The contention is made that his interest in building the new structure was such as to legally disqualify him in that respect. We have carefully read and considered all the evidence in the record bearing on that issue, and find nothing therein as basis for the claim that the county judge had any interest in the matter other than that which was for the best interests of those whom he officially represented.

Complaint is made that Myrick did not execute the bond required by statute. The contract required Myrick to execute the bond before entering upon the performance of his contract, and while we think it is mandatory that bond shall be given in all such cases, as indicated at another place in this opinion, we can see no objection to deferring its execution to a time prior to beginning the work.

Complaint is also made that the plans for the courthouse were not submitted to the inspector of masonry, public buildings and works, and that the commissioners failed to set aside 1 per cent, of the contract price of the building for the purpose of maintaining the office of that official. 34 Leg. Reg. Sess. p. 254 (Vernon’ Ann. Civ. St. Supp. 1918, arts. 6394dd-6394dddd). The act requires the inspector to inspect the plans, etc., of public buildings. It does not require the county officials to submit plans to him, though such would be proper. The act does require the officials to set aside and forward the fees charged. That the failure to observe these matters would invalidate a contract in all other respects valid, we are not prepared to hold. While they are of importance and should be complied with, they involve. purely official duties and cannot, we believe, serve as a basis for holding the contract void.

For the several reasons discussed in this opinion, the judgment of the honorable trial court dissolving the interlocutory injunction is reversed, and the cause remanded for further proceedings not inconsistent with the views expressed herein.

       — .Enr other cases: see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, C. X

license: Public Domain

text:
    SCHAEFFER v. WILLIAMS et al.

    (No. 6096.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 11, 1918.
    Rehearing Denied Jan. 15, 1919.)
    1. Guardian and Wakd @=>107— Sale by Guardian — Collateral Attack.
    Though application for sale of ward’s land by guardian alleged no grounds for sale set forth in Sayles’ Ann. Civ. St. 1897, art. 2653, judgment ordering sale cannot be attacked collaterally on account of such failure, and sale must be sustained in subsequent action of trespass to try title.
    2. Guardian and Ward @=>111 —Sale by Guardian — Deed—Lands Included.
    Deed of ward’s land, executed by guardian in consummation of sale under order in probate, describing land as interest which ward had in real estate belonging to her deceased father’s estate as one of heirs at law, held not to cover lands of ward derived ultimately from father through her deceased brother and mother.
    3. Guardian and Ward @=>90 — Sale by Guardian — Order oe Court.
    Under Rev. St. art'. 3480, order of sale is essential to validity of sale of ward’s lands by guardian, so that its terms must control as to property sold.
    4. Judgment @=>475 — Collateral Attack-Probate Court — Sale oar Lands — Presumption.
    County court in probate is court of general jurisdiction, and its judgments and orders have absolute verity in collateral proceeding, presumption prevailing that, when, in order for sale by guardian, property is confined to certain interest in certain estate, court understood what it intended should be sold by guardian and confined sale to property described.
    5. Evidence @=>452 — Parou—Sale oe Land-—Order oe Court — Latent Ambiguity.
    If there was latent ambiguity in description of ward’s land in order of sale by her guardian, it could be removed only by consulting other parts of probate record, in subsequent action of trespass to try title, and not by testimony of witnesses as to what they thought the term “estate of” meant -at the time.
    6. Adverse Possession @=>19 — Ten-Tear Limitations — Statute.
    Under Rev. St. art. 5678, in trespass to try title to recover land fenced with more than 5,000 acres owned by defendant, where testimony did not show that any part of land in controversy was cultivated and used for agricultural or manufacturing purposes, or was in actual possession of defendant, ten-year statute of limitations did not apply.
    7. Limitation oe Actions @=>14 — Statute oe Limitations — “Actual Possession.”
    The “actual possession” of Rev. St. art. 5678, providing possession of land belonging to another by person owning or claiming 5,000 acres or more of lands inclosed by fence shall not be peaceable and adverse possession, contemplated -by article 5675, unless there be actual possession thereof, means pedal possession, living upon, occupation of land, or making improvements.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Actual Possession.]
    Appeal from District Court, Live Oak County; F. G. Chambliss, Judge.
    Action by Martha Williams and husband against Rowena Schaeffer. From judgment for plaintiffs, defendant appeals.
    Affirmed.
    Beasley & Beasley, of Beeville, and Den-man, Franklin & McGown, of San Antonio, for appellant.
    Dougherty & Dougherty and G. C. Robinson, all of Beeville, for appellees.

      Writ of error denied by Supreme Court March 19, 1919.

   FLY, C. X

This is an action of trespass to try title instituted by appellees against appellant to recover an undivided 77/i2 8 interest in three certain tracts of land in Live Oak county, said tracts containing respectively 640, 320, and 320 acres, each patented to Henderson Williams, assignee of J. Poite-vent, as well as for rents and damages. Appellant pleaded not guilty, and limitations of three, five, and ten years. The cause was tried without a jury, and judgment rendered in favor of appellees for 69/128 of the three tracts of land herein mentioned.

The evidence showed that the guardian, R. H. Brown, through whom appellant claims, conveyed by his deed to F. W. Schaeffer only 8/2 8 of the land in controversy which was decreed to her by the trial court. Further necessary facts to a proper understanding of the decision of this court will be found throughout this opinion.

Error is claimed through the first assignment of error in the action of the court in holding that a certain sale made by R. H. Brown, guardian of the estate of Martha Williams, one of the appellees herein, was null and void, and in rendering judgment for her for a portion of the land sued for by her. Martha Williams was born in 1870, and her father, Henderson Williams, died in Live Oak county in 1875, and her mother, Mary Elizabeth Williams, died in 1877. R. H. Brown was appointed guardian of the person and estate of Martha Williams in January, 1877, and qualified in the March following. He returned an inventory of the property of his ward and administered the same. ' In January, 1878, although no debts were due by his ward and she had notes and cash amounting to $4,317.65, he applied for a sale of certain of her lands because of the land being owned jointly by others and the difficulties attending a partition of the same and because the land was decreasing in value and not revenue producing. The guardian sought the sale of all the real estate to which his ward might be entitled “in law and equity of the estate of H. Williams, deceased.” On March 9, 1880, Brown made application again to sell “a distributive share of the real estate of the said Henderson Williams, deceased,” belonging to Martha Williams, a minor. The ground for a sale was that the lands were unimproved and did not yield any revenue, and the timber was being cut and removed therefrom by depre-dators. An order of sale was granted to sell “the interest which the said minor has in and to the real estate belonging to the estate of Henderson Williams, deceased, as one of the heirs at law of said Henderson Williams.” There was an order confirming the sale of the “ward’s interest in the estate of her father, Henderson Williams, deceased.” The deed was made to F. W. Schaeffer, deceased husband of the appellant, Rowena Schaeffer. In the granting clause of the deed the guardian conveyed “all the right, title, claim or interest which my-said ’ward, Martha Williams, has in or to the lands and real estate . of Henderson Williams, dec§ased.” The court held that the sale was null and void.

The first application for a sale of real estate was made, by the guardian, on January 26,1878; but no order of sale was made until March 16, 1880, and that order was made in answer to another application which was filed on March 9, 1880. The record fails to show definitely to which of the applications. for a sale the order was directed. No necessity for the sale, however, appears in either of the applications, nor in the order of the court. It is stated in the applications and in the order that it would be advantageous toXthe estate to make the sale, but no necessity is shown in either for the sale.

It is held in Texas -that probate courts are courts of general jurisdiction as to all matters within the scope of the powers conferred upon them by law. In the law of 1876, being article 2653, Sayles’ Civ. Stats. 1897, it was provided that—

“When the income of the ward’s estate, and the personal property thereof, and the proceeds of previous sales, are insufficient for the education and maintenance of the ward, or to pay the debts against the estate, the guardian of the person, or of the estate, or any person * * * interested in the ward, may, by application in writing to the court in which such guardianship of the estate is pending, ask for an order for a sufficient amount of real estate to be sold to make up the deficiency.”

Article 2654 provides:

“It is the duty of the guardian to apply for such order whenever it appears that a necessity exists therefor, and to set forth fully in his application such necessity, and accompanying the application with an exhibit, under oath, showing fully the condition of the estate.”

The last article is embodied in the Revised Statutes of 1911, being article 4156, but article 2653 has been greatly enlarged in its scope by the acts of 1913 (Acts 33d Leg. c. 151 [Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4155]), by the additional, provision that non-revenue bearing property and an undivided interest in real estate may be sold. This law was anticipated by the guardian who sold the land in controversy by some 33 years. There was no such provision authorizing a sale of a ward’s land previous to 1913, and none of the grounds set forth in article 2653 were set forth in the application or order of sale. The necessity mentioned in article 2654, it would seem, would be governed and qualified by the exigencies mentioned in article 2653, and no sale would be justifiable unless made under one of those exigencies.

In the case of Weems v. Masterson, 80 Tex. 45, 15 S. W. 590, which is relied upon by appellant, the sale was made in 1859, on an application quite sijnilar to title one in tlie case now before' this'court; but in the order of the court was a recital “that a sale is necessary and will be of advantage to said minors.” The Supreme Court, through Chief Justice Stayton, held that a judgment of the district court could not be attacked collaterally because of defective pleading-s if the court had jurisdiction of the subject-matter and parties, and said:

“While proceedings in probate are to some extent in rem, we do not see that such is in all respects their character as to parties actually before the court in person or by legal representation; and, in a proceeding in guardianship such as that on which the rights of the parties in this case rest, we do not see why the same rule that would be applied to an adversary proceeding- in a district court should not be applied to a ward whose guardian makes an application for an order to sell property of the ward’s estate, obtains it, sells, reports the sale, and has it confirmed.”

The authorities cited in the opinion, as well as others, sustain it. Lynch v. Baxter, 4 Tex. 431, 51 Am. Dec. 735; Poor v. Boyce, 12 Tex. 443; Kleinecke v. Woodward, 42 Tex. 312; McNally v. Haynes, 59 Tex. 585; Gillienwaters v. Scott, 62 Tex. 672; Lyne v. Sanford, 82 Tex. 63, 19 S. W. 847, 27 Am. St. Rep. 852; Kendrick v. Wheeler, 85 Tex. 253, 20 S. W. 44; Driggs v. Grantham, 41 S. W. 408.

In the case of Taffinder v. Merrell, 95 Tex. 95, 65 S. W. 177, 93 Am. St. Rep. 814, the Supreme Court in following the Weems-Mas-terson Case said:

“Under the rules laid down in that caso, the jurisdiction of the county court did not depend upon the showing in the application of one of the statutory causes for such sales. The absence of such a showing, or the statement of a reason which would not authorize a sale, might make the order of sale erroneous; but it does not follow that it was not within the power of the court to make such order. * * * The order of sale does not show on its face that it was made for the reasons stated in the application, or that facts not therein set up did not exist, which, under the law, authorized the sale.”

This is carrying the presumption in favor of the validity of the judgment to the breaking point, but it is so settled and must be followed. Under the decisions the sale by the guardian of his ward’s land must be sustain-^ ed. It is not contended by appellees that the sale was void.

There is no doubt, however, that the guardian’s deed could not and did not convey any interest of the ward, in excess of the quantity of land described in the order of the probate court. The land was the community property of Henderson Williams and his second wife, whom he married in 1869, and by whom he had two children; the eldest being Martha, the ward and the real\ appellee herein. The other child was born after the death of Henderson Williams. The latter died in May, 1875, and the posthumous child was born in December, 1875. The latter died in the summer of 1876, leaving the mother and sister as owners of the land owned by it. The mother died in February, 1877. Henderson Williams had six children by his first wife. Those six children and the two by the second wife inherited one-half of the community lands from their father’s estate; the share of each being one-eighth of one-half, or a one-sixteenth, undivided interest in the whole. When the posthumous child died, his part went to his mother and the seven children. When the mother died, Martha inherited her half of the community property and her part of the land of the posthumous child, and then she owned a total of 77/i28 of the entire tract, 8/28 of which was inherited from her father. In the applications for sale of the land of the ward, the only interest described was the distributive share of the ward in the estate of Henderson Williams, deceased; in the order of sale the land was described as “the interest which the said minor has in and to the real estate belonging to the estate of Henderson Wil--liams, deceased, as one of the heirs at law of said Henderson Williams.” In the brief of appellant that language is copied, and it is said that the language “indicates the intention of the guardian and of the probate judge to sell the interest which the minor owned ‘as an heir at law of Henderson Williams,’ and it cannot be gainsaid that the language considered alone does not disclose a purpose to sell any interest save only that the minor so owned.” The descriptive words applied to the land as being the interest of the ward in and to the land of her deceased father, Henderson Williams, are used at least four times in the deed of the guardian to Schaeffer. In the order of sale the land is so described, as well as in the order confirming the sale. The record of the probate court plainly shows that all intended to be sold by the guardian was the interest of the ward, inherited from her father. The interest inherited from the mother and the posthumous child is not mentioned, and to include that interest it must be read into the record. As said in the brief of appellant:

“The deed is not a loosely drawn instrument; it has all the formal parts of a good and sufficient deed, and the language used is plain, appropriate, well-considered, and carefully used, all disclosing that the writer was familiar with conveyancing and realized that the proper description of the property intended to be conveyed was essential to the validity of the conveyance.”

It is inconceivable that a man, possessing the legal knowledge of conveyancing so fully attributed to him by appellant, should, when he intended all the interest of his ward in three tracts of land, described in the deed, describe the land sought to be conveyed as “all the interest which my said ward, Martha Williams, had in and to the lands and real estate of her deceased father, Henderson Williams”; and again as “all the right, title, claim, or interest which my said ward has in or to the real property or lands belonging to the estate of her deceased ■ father, Henderson Williams” ; again, as “all the interest which my said ward has in and to the lands of her deceased father, Henderson Williams”; and again as “all the right, title, claim, or interest which my said ward, Martha Williams, has in or to the lands and real estate of Henderson Williams.” The repetition of the description of the land in the deed, preceded by its use in the applications to sell and the order of sale and followed by the order of confirmation, strongly negative any desire or intention to convey any interest in the land except that indicated in the plain and oft-repeated description of the ward’s interest in her father’s property.

If the land had been described as “all of the minor’s interest in the lands,” as stated by appellant, the deed would have undoubtedly conveyed all of her interest in the entire three tracts; hut her interest is always qualified and described as that inherited from her father. So in the order of sale the property authorized to be sold was “the interest which the said minor has in and to the estate of Henderson Williams, deceased, as one of the heirs at law of said Henderson Williams.”

The statute requires the land to be sold to be described in the order of sale so as to identify it. The order is essential to the validity of a sale by the guardian, and if essential its terms must control as to the property to be sold. Article 3480, Rev. Stats. While indefiniteness of the description of land in an order of sale might not invalidate the sale, if the land might be identified by it, still when the description is as clear as in this case we have seen no authority sustaining the view that other land might be shown different from that described in the order.

The statute provides that no sale of any property belonging to an estate shall be made by an executor or administrator without an order of the court authorizing the same, and that statute also applies to sales by guardians. Teague v. Swasey, 46 Tex. Civ. App. 151, 102 S. W. 458. By decisions of courts the application for sale may be missing and a confirmation not shown, and still the sale be sustained; but an order of sale is always essential. Being the essential part of the proceedings for a sale, its recitals are of vast importance, and in this case the order makes it explicit that the estate of the minor authorized to be sold is her interest in “the estate of Henderson Williams, deceased, as one of the heirs at law of said Henderson Williams.” It is repeated in the order that the land to be sold is the interest “which the said minor has as one of the heirs at law of Henderson Williams, deceased, in or to any real estate belonging to the estate of said Henderson Williams, deceased.” When that order was given, Henderson Williams had been dead for five years. His estate consisted of one-half of the property in controversy, and it immediately passed to his six children by the first marriage and his two children of the second marriage. Martha Williams inherited her share of that estate, and that comprised her entire interest in the estate of her father. She afterwards inherited a share of the interest of the posthumous child and then the half interest of her mother. These facts must have been known to R. H. Brown, the guardian, and he must have known of what the entire interest of his ward in the estate of her father consisted. It is admitted that he was an expert and competent convey-ancer, and yet it is sought to make a plain description of the interest of the ward in her father’s estate apply to property which came to her through her mother and the posthumous child.

The county court, sitting in probate matters as in others, is a court of general jurisdiction, and its judgments and orders have absolute verity in a collateral proceeding, and the' presumption must prevail that when, in an order, an estate is confined to a certain interest in a certain estate, the court understood what it intended should he sold by the guardian and confined the sale to the property described. To hold that the plain words of description in the order, which confined the interest in the land' to a certain inheritance, would comprise other lands, would he to hold that the court did not understand the terms used by it and to indulge the presumption that a larger estate was intended. That there is no ambiguity in the description given in the application, order of sale, and deed of conveyance, is admitted by appellant; but it is sought to extend and broaden the description so as to include property not embraced in the description. Following the rule sought to be enforced through the second assignment of error that of construing the guardian’s deed in connection with the orders of the court, nothing is evidenced except what is clearly expressed in the order of the court. While asking the enforcement of such a rule, which is reasonable and proper, from the statement it appears that it is sought to construe the deed and orders of the court by parol testimony /is to the manner in which lands are colloquially described and other matters. It may be, as stated by witnesses, that many people speak of the community estate of a man and woman as that of the man, even though the man died and his children inherited his half of the estate and the wife had her half and died and left it to her heir; but that would not tend to show that an expert in conveyancing and a judge of a court of general jurisdiction would be so inaccurate as to embody an incorrect colloquialism in the orders of the court and in the recitals of a deed.

We are unwilling to adopt the contention of appellant that the 'language of the order of sale should not be given controlling effect over that used in the order of confirmation. The first is essentially necessary and indispensable; the latter might be supplied by evidence of recognition of the sale by the court without such confirming order. Robertson v. Johnson, 57 Tex. 62.

The power of the guardian to sell the property of his ward must depend solely upon the authority granted by the order of sale, and, if he sells different property from that for which the order was given, a confirmation of that sale could give no vitality to his action in selling. The order of confirmation must follow the order of sale, and that is what was attempted to be done in this case; for it is stated that a report had been made of a sale “in accordance with an order heretofore made in the matter of this estate,” and any inconsistency with the description in the order of sale must give way to it.

If there was a latent ambiguity in the description of the land, which we think does not appear, it could only be removed by consulting other parts of the record, and not by the testimony of witnesses as to customs and other matters. What witnesses thought was meant by the estate of Henderson Williams should not be permitted to change the plain meaning of words used in orders of court and deeds of conveyance. As said in the case of Collins v. Ball, 82 Tex. 259, 17 S. W. 614, 27 Am. St. Rep. 877:

“Here is neither a latent nor a patent ambiguity. There is a total misdescription of the land in dispute, and other distinct land, so far as the records of the proceedings disclose, is plainly described. In such case we can only arrive at what the court intended by what the court did, as manifested by its own records. To give effect to a supposed intention of the court, wholly unexpressed in any of the proceedings, would be, not only to contradict the records, but in effect to pass the title to the land by parol. Other land than that which is clearly described in the proceedings cannot be ingrafted into these records for the purpose of showing that it was in fact the land intended to be sold.”

To a like effect is Watts v. Howard, 77 Tex. 71, 13 S. W. 966.

Under the testimony, appellant failed to show a title by limitations. The land was fenced with more than 5,000 acres owned by appellant, and the testimony did not show that any part of the land in controversy was cultivated and used for argicultural or manufacturing purposes, or that it was in the actual possession of appellant, and the ten years’ statute would not apply. Rev. Stats, art. 5678; Dunn v. Taylor, 102 Tex. 80, 113 S. W. 265; Flack v. Bremen, 45 Tex. Oiv. App. 473, 101 S. W. 537; Huling v. Moore, 194 S. W. 188. The description in the deed would not support five years’ limitation, except as to the interest of appellee Martha Williams in the estate of her father, Henderson Williams, - deceased.

The “actual possession” named in the statute last cited means pedal possession; that is, living upon or actually occupying the land, or placing improvements directly upon it. If it does not mean that, it renders nugatory the balance of the statute. Fields v. Allison, 171 S. W. 274.

There is no error presented requiring a reversal, and the judgment is affirmed.
      <£S^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      t§u=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: JENKINS, J.

text:
    EARLY-FOSTER CO. v. MID-TEX OIL MILLS.
    (No. 5960.)
    (Court of Civil Appeals of Texas. Austin.
    Nov. 27, 1918.
    On Motion for Rehearing, Jan. 22, 1919.)
    1. Evidence <⅞=>501(7)—Value—Means op Knowledge.
    Testimony, in a suit for conversion of cotton linters, as to how witness knew the market value of the linters at the time stated by him, was admissible.
    2. Trial <§=>83(2)—Introduction op Testimony-Objections.
    Unless it appears from the nature of the question that its answer would be prejudicial, it is not reversible error to overrule an objection that the testimony is immaterial; such objection being too general.
    3. Appeal and Error <§=>231(3)—Reserva-tion op Objections—Suppiciency.
    An objection^ that testimony is immaterial, irrelevant, and incompetent is too general to form the basis of an assignment of error, unless it appears from the nature of the question that the answer will be prejudicial to appellant.
    4. Appeal and Error <S=>1062(5)—Harmless Error—Immaterial Special Issues— Measure op Damages.
    Submission, in a suit for conversion, of a special issue forming an erroneous basis for fixing the measure of damages, is not reversible error, since the answer would be immaterial, and should be ignored. "
    5. Appeal and Error <§=>1062(5)—Funda-mental Error.
    To base a judgment in a conversion suit on the highest market price of the property converted is fundamental error, if such market value is not the proper measure of damages.
    6. Pledges <§=>36 — Conversion — Measure op Damages.
    Where a bailee, holding cotton linters in trust for the owner as security, violates the trust by selling the property and placing it beyond (he owner’s reach, the measure of damages for conversion is the highest market price of the property between the date of the conversion and the filing, of. suit.
    7. Trover and Conversion <®=>44, 49 — Measure oe Damages.
    Where conversion is not attended by fraud, willful wrong, or gross negligence, the measure of damages is the value of the property at the time of conversion with interest; but, where such circumstances are present and the property is of changing value, the measure is the highest market value between conversion and trial.
    8. Pledges <S=>36 — Sale and Conversion-Damages — Interest.
    Where a bailee of property, as security for money loaned, sold and converted it, interest could be allowed only upon the difference between the value of the property and the amount loaned, instead of upon the total value of the property.
    Appeal from District Court, McLennan County.
    Action by the Mid-Tex Oil Mills against the Early-Poster Company. Judgment for plaintiff, and defendant appeals.
    Reformed and affirmed, and rehearing denied.
    Sanford & Harris, of Waco, for appellant.
    Stribling & Stribling, of Waco, A. L. Curtis, of Belton, and Winbourn Pearce, of Temple, for appellee.
   Findings of Pact,

JENKINS, J.

1. On December 14, 1915, the appellant and appellee, each of which is a private corporation, entered into the following contract:

“Waco, Texas, 12/14/15.
“Mr. N. K. Smith, President Belton Oil Mills, Belton, Texas — Dear Sir: It is agreed between Early-Poster Company and Mr. N. IC. Smith, president of Belton Oil Mills, Bartlett Oil Mills and Granger Oil Mills, that Early-Poster Company shall advance Belton Oil Mills, for 60 to '90 days at 8 per cent, interest, 5 cents per pound on 100 to 500 bales cotton linters, same to be shipped via Katy, flat, to Early-Poster Company, Waco, care Exporters’ & Traders’ Compress & Warehouse Company, from Belton, Bartlett or Granger.
“Belton Oil Mills shall pay the insurance charges on the linters; they however to be covered by our blanket policy at full value; and you shall pay any compress and storage charges on the linters. ,
“The linters shall be invoiced to us not as a sale, but on an advancement invoice. If they are sold for 5 cents per pound or more, the difference shall be paid to you, less the charges due on same, but if they are sold for less than 5 cents you shall pay us the difference, together with charges due.
“In order to avoid any bother, we will both sign this agreement; and will thank you to sign and return us the original.
“Early-Poster Company,
“[Signed] W. M. Poster.
“Accepted:.”

2. This suit was filed May 26, 1916, for the alleged conversion of 400 bales of linters shipped^fco appellant by appellee under said contract.

3. The case was submitted to a jury on special issues, as follows:

“First Question. Did the Early-Poster Company sell the 400 bales of cotton linters in controversy prior to the 24th day of February, 1916?
“The burden of proof is upon the plaintiff to prove the affirmative of this issue by a preponderance of the evidence.
“Second Question. Did plaintiff herein agree with the defendant Early-Poster Company that the said defendant could sell the linters delivered to it and at the maturity of the contract herein substitute other linters of like grade therefor?
“The burden of proof is upon the defendant to prove the affirmative of this issue by a preponderance of the evidence.”
“Fifth Question. What was the highest market value of the linters in issue between February 24, 1916, and May 26, 1916?
“In answering this question you will state the aggregate amount in dollars and cents found as the value of said linters.
“Sixth Question. Did the defendant, in substituting other linters to plaintiff for and in lieu of plaintiff’s linters sold by the defendant under a mutual mistake, deliver to plaintiff linters of a higher grade than those received by it from plaintiff?
“The burden of proof is upon the defendant to establish the affirmative of this issue by a preponderance of the evidence.
“If you answer the sixth question in the negative, you need not answer the seventh question. If you answer the sixth question in the affirmative, you will answer the seventh question.
“Seventh Question. What was the difference in the market value at the time of the redelivery of the linters previously received by defendant from plaintiff, and those substituted therefor?”

The jury answered said interrogatories as follows:

“Answer to First Question: Yes.
“Answer to Second Question: No.
“Answer to Fifth Question: 7½ cents. $15,-976.12.
“Answer to Sixth Question: No.
“Answer to Seventh Question: -”
Special issues 3 and 4, with the answers thereto, are omitted, as not being material to the issues involved on this appeal.
The evidence sustains these findings.

. - Opinion.

The first and second assignments of error complain of the action of the court in permitting the witnesses Smith and Claiborne to state how they knew the market value of linters at the times stated by them. This testimony was admissible. No objection was made to their stating the fact as to such values. In order to determine what weight should be given to their testimony, it was proper to Inform the Jury as to their means of knowledge.

The only objection to this testimony was that it was immaterial. If this was true, unless it appeared from the nature of the question asked that its answer would be prejudicial to appellant, overruling such objection would not have constituted reversible error. Except under the circumstances stated, the objection that the testimony is immaterial, irrelevant, and incompetent is too general to form the basis of an assignment of error. Ry. Co. v. Smith, 50 Tex. Civ. App. 10, 108 S. W. 998; Sigafusi v. Porter, 84 Fed. 435, 436, 28 C. C. A. 443; 1 Wigmore on Ev. p. 58.

In Sigafus v. Porter, supra, the court said:

“The stock objection ‘incompetent, irrelevant, and immaterial’ covers a multitude of sins. There is hardly an objectionable question but what can be classified under one or other of these heads. Sometimes the real * * * objection is so plain that the general phrase will be quite sufficient to indicate it; indeed, it may bo quite apparent without any statement of the grounds of objection at all. But there are many other objections which rest upon some particular theory of the case, or upon some single fact in proof, which a judge may readily forget in the course of a long and intricate trial. It is only fair in such cases to require counsel to state clearly to the trial judge on what ground it is that they object. Certainly it is not fair to allow such a dragnet as ‘incompetent, irrelevant, and immaterial’ to be east over every bit of evidence in the case which counsel would like to keep out, and then to permit counsel, upon careful analysis of the printed narrative of the trial, to formulate some specification of error not thought of at the time, and which, if seasonably called to the court’s attention, might have been avoided or corrected.”

The third assignment of error complains of the refusal of the court to permit appellant to prove that the expression, “60 to 90 days,” meant, in the usage of the trade, that appellant had the right after the expiration of 60 days to demand of appellee additional security for the money advanced, if the market in the meantime had declined; and, in the event of the failure to furnish such security, to sell the linters and apply the proceeds, or so much thereof as was necessary, to the payment of the money advanced. If such be the fact, it was immaterial to any issue involved in this case, inasmuch as appellant sold the linters before the expiration of the 60 days, and without demanding additional margin.

Appellant’s fourth assignment is. as follows:

“The court erred in submitting to the jury special issue No. 5, as follows: ‘Fifth Question. What was the highest market value of the linters in issue between February 24, 1916, and May 26, 1916?’ Because said question submits to the jury an erroneous basis for the purpose of fixing the measure of damages.”

The fact, if such be the fact, that the highest market price of the linters between February 24, 1916, and May 26, 1916, was! not appel-lee’s measure of damages, would not constitute the submission of such special issue reversible error. In such case the answer of the jury would be immaterial, and should be ignored by the court in rendering its judgment.

When a case is submitted on special issues, the submission of an immaterial issue is not reversible error. Krenz v. Strohmeir, 177 S. W. 181; Kelly v. Ward, 94 Tex. 292, 60 S. W. 311; Ins. Co. v. White, 177 S. W. 165; Petroleum Co. v. Dinwiddle, 182 S. W. 446.

If, however, the market value at the dates submitted by the court was not the proper measure of damages, and the court based its judgment on the highest market price within those dates, and it so appears upon the facei of the record, we think this would be fundamental error.

The judgment of the court was based on this finding. Was this error? We think not. Where the conversion is not attended with fraud, willful wrong, or gross negligence, the measure of damages is the value of the property converted at the time of such conversion, with legal interest thereon to the time of trial. But where the conversion takes place under either of these circumstances, and the property converted is of changing value, the measure of damages is the highest market value of such property between the date of conversion and the filing of the suit. Bayle v. Norris, 134 S. W. 773; Witliffi v. Spreen, 51 Tex. Civ. App. 544, 112 S. W. 98; Ripy v. Bess, 55 Tex. Civ. App. 492, 118 S. W. 1084; Ry. Co. v. Starr, 22 Tex. Civ. App. 353, 55 S. W. 395.

Thus, for the reason that, where one’s property has been wrongfully taken by another, it does not thereby cease to be the property of the owner; and he may recover such property, if he can find it, even from an innocent purchaser for value, if it be not a negotiable instrument; or he may abandon his title to the same, and recover its value. In such case, the wrongdoer will not be entitled to the advantage of the fluctuation in value, but will be held to the highest value between the time of his wrongful taking apd the filing of the suit, for the reason that he has deprived the owner of the opportunity of obtaining such price. The law will not allow a wrongdoer to speculate as to whether or not, but for his wrongful act, the owner would have sold on such highest market.

If this is true as to a conversion by a willful trespasser, as is held in the cases above cited, a fortiori it should be true where one has eome into possession as bailee, and, while holding it in trust for the owner, violates such trust by selling the property, and placing it beyond the reach of the owner, as was done in the instant case. Appellee placed the linters in possession of appellant, and borrowed money on them, because he wished to hold them for a higher market. When the market rose and it offered to pay appellant the money it had borrowed on the linters, it found that they had been sold and shipped out of the country. Damages are based on compensation. Field v. Munster, 11 Tex. Civ. App. 341, 32 S. W. 417 et sea., and authorities there cited; Muenster v. Field, 89 Tex. 103, 33 S. W. 852. Nothing less than the price which it could have obtained for its linters, but for their wrongful conversión, is compensation to appellee.

Appellant’s fifth assignment is as follows:

“The court erred in rendering judgment herein for the $6,215.38 by reason of the fact that the said amount included $1,235.44 interest, when it should only have included $385.11 interest, the court having calculated interest on the whole amount of $15,976.12 from the 24th day of February, 1916, as found by the jury in answer to special issue No. 5, whereas, it should have calculated the interest from the 24th day of February 1916, on the difference between said $15,979.12 and $10,996.18, which plaintiff’s pleadings and the uncontradicted evidence showed was the amount of advances made by defendant, Early-Foster Company, to plaintiff, including interest to March 12, 1916, the date of tender by plaintiff to this defendant, and other proper charges under the contract.”

We sustain this assignment. The theory upon which the trial court rendered judgment was that appellee was entitled to legal interest on the value of its property from the date the suit was filed to time of trial; that appellant was not entitled to interest on the money it had loaned appellee after a tender of same, which was made by appellee and refused by appellant. Either of these propositions, taken alone, is correct. But the fact remains that appellee, when it made the tender to appellant, had, and still has, the money which appellant advanced to it. Had appellant settled with appellee at that time, as it should have done, appellee would have received, not the value of the cotton converted, but that amount less the amount that it had borrowed from appellant. The difference between these sums was the amount of the damages it suffered by reason of the wrongful act of appellant in refusing to account for the value of the cotton; and its subsequent damage is such difference with legal interest thereon.

For the reason stated, the judgment of the trial court is here reformed so that appellee recover of appellant $5,361.05, with interest thereon from the date of the judgment at the rate of 6 per cent, per annum, instead of $6,215.38, as adjudged by the trial court.

As thus reformed, the judgment of the trial court is affirmed.

Reformed and affirmed.

On Motion for Rehearing.

Appellant insists that the measure of damages for the conversion of property is the 'value of the property at the time of the conversion. We do not understand this to be the law where the property is of fluctuating value, and its conversion takes place, as it did in this case, under the circumstances stated in our opinion herein. Appellant cites in support of its contention, Moore v. Aldrich, 25 Tex. Supp. 276; Hatcher v. Pelham, 31 Tex. 202; Blum v. Merchant, 58 Tex. 400; Norwood v. Bank, 92 Tex. 268, 48 S. W. 3; Natl. Bnk. v. Mineóla State Bnk., 155 S. W. 603; Warehouse Co. v. Rice Co., 164 S. W. 396; Bayle v. Norris, 134 S. W. 767; Bank v. Butler, 92 Ark. 472, 123 S. W. 657; Masterson v. Goodlett, 46 Tex. 402; Ry. Co. v. Campbell, 170 S. W. 859; Ry. Co. v. Fruit Co., 200 S. W! 420; Dimock v. Bank, 55 N. J. Law,' 296, 25 Atl. 926, 39 Am. St. Rep. 643; Bank v. Boyce, 78 Ky. 42, 39 Am. Rep. 198; 3 Elliott on Contracts, §§ 729-731; Jones on Collateral Security (3d Ed.) § 574, p. 684; 22 Am. & Eng. Elne. of Law, 875; 31 Cyc. 845.

This is a formidable array of authorities, numerically considered; but an examination of them shows that they do not support appellant’s contention. It should be borne in mind that the linters converted in the instant case were of fluctuating value, and were pledged by appellee in order that he might, by borrowing money thereon, be able to hold them for a higher market; that they were sold by appellant on a low market, before the debt for which they were pledged was due; that thereafter appellee, having no knowledge of such sale, tendered payment of the debt and demanded return of the linters.

None of the cases cited by appellant deal with the question of the fluctuating value of the property pledged, or present the issue as to the value of such property subsequent to its conversion as against its value at the time of such conversion, except the cases of Mas-terson v. Goodlett and Bayle v. Norris. In the former ease the trial court instructed the jury that the measure of damages was the highest price from the time of the conversion to the time of the trial. The Supreme Court approved this as a general principle, but held that it was not applicable under the peculiar facts of that case. As to those facts, the court said that it might well be found that the defendant “was committing no wrong, but only doing what he might well have assumed the plaintiff wished him to do, as being for his best interest.”

In Bayle v. Norris, the court held that if the timber was taken in good faith, under a belief of ownership, without culpable negligence, the measure of damages was its value at the time of the taking, but, if not so taken, the plaintiff was entitled to the value of the timber after it had been converted into lumber by the defendant.

In Moore v. Aldrich, there is nothing said in the opinion about the measure of damages. The syllabus is misleading in this regard.

In Hatcher v. Pelham, the case was reversed. because the court Instructed the Jury that the measure of damages was the price at which the plaintiff instructed defendant to sell the cotton, without reference to its market value.

In Blum v. Merchant, the contention of appellant was that appellee should not be allowed the market value of the goods at the place where they were converted, which was all that plaintiff sued for, but only cost and carriage.

In Norwood v. Bank, the price of the lumber at the time of the trial was shown to be the same as when it was seized.

In Natl. Bank v. State Bank, the plaintiff asked only for the value at the time of the conversion.

In vVarehouse Go. v. Rice Co., no issue as to fluctuating value was presented. The error assigned was that the court submitted the reasonable value instead of the market value.

In Bank v. Butler, suit was for the price of the scrip at the time of the conversion. The error was that the court made the highest price at which the scrip could have been sold “at the time of conversion” the measure of damages, instead of its market value at that time.

In Ry. Co. v. Campbell, the suit was for the market value at the time of the conversion. Plaintiff contended that the retail value was the market value.

In Ry. Co. v. Fruit Co., it was held that proof of the market value on ■ August 22d would not support a judgment for conversion on August 24th; the fruit being of a perishable nature.

Bank v. Boyce deals only with the power of a factor to pledge goods.

' Thus it will be seen that none of the cases above referred to support appellant’s contention that the measure of damages, under the facts of the instant case, was the market value of the linters at the time of their conversion; it being shown that they were of fluctuating value.

The remaining case cited by appellant is Dimock v. Bank. In this ease the court said that the measure of damages for conversion of securities of fluctuating value is not their market value at the time of the conversion. The opinion in this case quotes with approval from Galigher v. Jones, 129 TJ. S. 200, 9 Sup. Ct. 337, 32 B. Ed. 660, which states as follows:

“To allow merely their value at the time of conversion would, in most cases, afford a very inadequate remedy; and in the case of a broker, holding the stocks of his principal, it would afford no remedy at all.”

The reference to Elliott on Contracts is an erroneous citation. The third volume does not contain sections 729-731, and sections 729-731, in volume 1, do not treat of the measure of damages.

Jones on Collateral Securities, § 514, does say that “the value of the property at the date of the conversion is the criterion of damage”; but it further says that the date of the demand for the return of the securities is the. date of the conversion.

We quote from 22 Am. & Eng. Ency. of Law, p. 875, as follows:

“Where there is uncertainty or fluctuation attending the value, and the chattel rises in value after its conversion, the pledgor can be indemnified only by giving to him the amount of its value at the time he calls upon the pledgee to restore it.”

We quote from 31 Cyc. 845, as follows:

“In cases where it is held that the pledgor must tender repayment of his debt before he is entitled to demand a return of the property, or maintain a suit for its conversion, it is held the measure of damage is the value of the property at the time such tender and demand is made, and not its value at the time of the conversion.”

Thus it will be seen that neither the eases nor the text-books cited by appellant support its contention; but, on the contrary, in so far as they are in point, they are against such contention.

If we adopt the measure of damages adopted by the New Jersey court in Dimock v. Bank, supra, and also by the New York courts '(see Baker v. Drake, 53 N. Y. 211, 13 Am. Rep. 507; Id., 66 N. Y. 518, 23 Am. Rep. 80; Gruman v. Smith, 81 N. Y. 25; Colt v. Owens, 90 N. Y. 368; Wright ,v. Bank, 110 N. Y. 238, 18 N. El. 79, 1 L. R. A. 289, 6 Am. St. Rep. 356), and also by the Supreme Court of the United States as to commercial securities (see Galigher v. Jones, supra), which is the highest market value between the time of the conversion and a reasonable time to replace the security after notice of sale; or if we adopt the test laid down in Am. & Eng. Enc. of Law, supra, or in Cyc. supra — in either event, the evidence is sufficient to sustain the judgment herein.

Appellee tendered payment and demanded the return of the linters on March 13, 1916, which was the day on which it discovered that they had been sold. ■ N. K. Smith, appellee’s manager, testified that the price of linters from March 12th to April 26, 1916, was 7½ cents per pound, which is the price upon which the judgment herein was based. The witness Claiborne testified that the price on March 20, 1916, was 7½ cents.

Appellant says that in some cases it has been held that the measure of damages is the value of the property at the time of the conversion; in others, the highest value between the time of the conversion and the time of trial; but that we have announced a new standard, viz. the highest price between the date of conversion and the filing of the suit. Appellee did not ask for the highest price to the time of the trial, and hence that was not an issue in this case. Where the property is of fluctuating value, and has been taken without any claim of right, and the suit is seasonably brought, we thing 'that the standard which is announced herein is a just measure of damages.

Believing that our decision herein has correctly disposed of this case, the appellant’s motion for a rehearing is overruled.

Motion overruled.
      <g=For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J. HIGHTOWER, O. J.

text:
    STRIPLING v. MOONEY.
    (No. 387.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 27, 1918.
    On Motion for Rehearing, Jan. 8, 1919.)
    1. Justices of the Peace 141(2) — Appeal —JURISDICTION OE COUNTY COURT.
    If the justice court did not have jurisdiction of action because the value of the property exceeded $200, the county court had no jurisdiction on appeal.
    2. Justices of the Peace <©=>44(6) — Jurisdiction — Amount—Pleadings—Replevin.
    The amount in controversy in replevin will be assumed to be that fixed in the complaint in determining the jurisdiction until the contrary is shown.
    3. Justices of the Peace <S^44(6) — Jurisdiction — Raise Statement of Value — Purpose-Finding.
    It is not sufficient that the value of property in controversy is more than stated in the complaint and beyond the justice’s jurisdiction, unless plaintiff falsely stated the value for the purpose of conferring jurisdiction.
    4. Justices op the Peace <3=^141(6) — Jurisdiction — Amount—Findings.
    Though the jury on appeal found the value of personalty in controversy to be $300, it must be held that plaintiff’s allegation of value to he $195 was made in good faith, where there was no request for finding on plaintiff’s good faith.
    On Motion for Rehearing.
    5. Justices op the Peace <§=»173(3) — Jurisdiction — Appeal—Evidence.
    In replevin action brought in the justice court, upon appeal to the county court, it was error to exclude evidence that plaintiff’s attorney stated that he knew the automobile’s value was beyond the justice court’s jurisdiction, but lowered it in the complaint because he could get quicker trial In the justice court.
    Appeal from Nacogdoches County Court; J. F. Perritte, Judge.
    Suit by E. E. Mooney against J. B. Stripling in the justice court. Upon appeal to the county court, a judgment was rendered for plaintiff and against defendant and the sureties on his replevin bond, and defendant appeals.
    Reversed and remanded.
    C. A. Hodges, of Nacogdoches, for appellant.
    Ingraham & Watson and S. M. Adams, all of Nacogdoches, for appellee.
   BROOKE, J.

This is a suit brought in the justice’s court by appellee against appellant for an automobile or its value, alleged to be $195. In the county court, on appeal, there was a jury trial, resulting in a judgment for the plaintiff for the car sued for, and against the defendant and the sureties on his replevy bond for the sum of $195. The defendant, in the justice’s court, in due time filed a proper plea to the jurisdiction of that court on the ground that the value of the car exceeded $200, and that its value had been fraudulently alleged to have been $195 by plaintiff for the purpose of conferring jurisdiction upon that court. This plea was urged in th(e county court, and the jury was asked the question as to what was the value of the car in question, to which they answered, “$300.” Upon this plea and the answer of the jury to this question, appellant urges the proposition that the court was without jurisdiction in this case, and should have dismissed the case.

If the justice’s court did not have jurisdiction because the value of the property exceeded $200, the county court did not acquire jurisdiction by the appeal to it, and if the value of the property exceeded $200, the justice’s court was without jurisdiction. In determining this question, however, it will be assumed that the value of the property is the amount fixed in plaintiff’s pleading until it is shown that this value is in excess of $200, and that the value had been falsely alleged to be less for the purpose of conferring jurisdiction on the trial court. It is not sufficient that the trial court or jury should find that the value was greater than stated in plaintiff’s pleading. The further finding must be had that it was falsely so stated for the purpose of conferring jurisdiction upon the court. Turner & Bro. v. Gable, 195 S. W. 348.

There was no request by appellant for a finding by the jury upon the good faith of appellee in alleging the value of the automobile to be $195, and therefore it must be held that such allegation of value was made in good faith, notwithstanding the finding of the jury from the testimony before them, that the value was $309.

We have examined carefully all questions raised in appellant’s brief, and believe that the record presented to this court fails to show error in the trial of the cause below. Therefore we affirm the judgment in this case.

On Motion for Rehearing.

HIGHTOWER, O. J.

Upon consideration of appellant’s motion for rehearing in this cause, we find that in the preparation of the original opinion by this court we overlooked appellant’s fourth assignment of error. That assignment complains of the refusal of the trial court to permit appellant to introduce certain evidence touching the issue of bad faith on the part of appellee in filing this suit in the .iustice’s court. By a proper bill of exceptions it is made to appear that while the appellant, Stripling, was on the witness stand, he was ashed the following question by his counsel, to wit: •

“Mr. Stripling, state whether or not you were present at each of the trials in this case in the justice court and whether you remember that O. C. Watson, the attorney for the plaintiff [appellee], stated in said trials and agreed to the court and jury that he knew before he filed this suit that the automobile in question was worth $25,0 or $300-, but that he brought the suit in the justice court for the reason that he could get a trial quicker in the justice court than he would by filing suit in the county court.”

The bill further shows that the appellee objected to the answer of the witness Stripling to this question, upon the ground that the same would be immaterial, which objection the trial court sustained, and refused to permit appellant, while such witness, to answer the question. It is further shown by the bill that, had the witness Stripling been permitted to answer the question, he would have answered that he did hear appellee’s counsel state at the trial of this cause in the justice court that he (appellee’s counsel) did know at the time he filed the suit in the justice court that the automobile in question was worth $250 or $300, but that he brought the suit in the justice court so that he could get a trial quicker than he could have done by filing it in the county court. The action of the'trial court in sustaining the objection interposed to this evidence was clearly error, because such proffered testimony was material on the issue of bad faith of ap-pellee and his counsel in filing the suit in the justice court, which issue was tendered by the answer of the appellant in this case. If this testimony had been admitted, as it should have been, against the objection offered thereto, it would have clearly raised the issue before the jury as to whether appellee knew at the time he filed the suit in the justice court that the value of the automobile exceeded the jurisdiction of that court, and that its 'alleged value for a less amount so as to bring it within the jurisdiction of that court was fraudulently made; and thus there would have been an issue which appellant could properly have requested the court to submit to the jury. But, without this evidence, as is admitted by appellee, there was no issue of fact to go to the jury on that point, and appellant could not have properly requested the trial court to submit such issue.

Therefore appellant’s motion for rehearing is granted, and because of the error of the trial court, as pointed out by the fourth assignment, its judgment is reversed, and the cause is remanded.
      ®=sFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes