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that plaintiff fails to show that he and des dispose of the only grounds upon which apfendants are claiming the same land unuer pellee claims to have shown right to recover. him. Concede that each of the deeds at- As he failed to show such a right, the judgtempts to convey an undivideu interest of ment of the lower court will be reversed and 32712 acres, do they convey the same undi- judgment here rendered for appellants. Re vided interest? Or, if each was intended to versed and rendered. convey a specific tract of 32712 acres, did each convey the same tract? Without some evidence, outside of these deeds of trust, to show what Edwards' interest was, if he had NOEL v. CITY OF SAN ANTONIO.1 any, we do not see how plaintiff can show

(Court of Civil Appeals of Texas. Nov. 13, that, through them, the same interest is

1895.) claimed by both parties under Edwards.

MUNICIPAL CORPORATION - LIMITATION OF POWEB Howard v. Masterson, 77 Tex. 41, 13 S. W.

TO CONTRACT — CONTRACTING BY 635; Wallace v. Berry, 83 Tex. 330, 18 S. W.

ORDINANCE-ESTOPPEL. 595; Hendricks v. Stone, 78 Tex. 359, 14 S. 1. Const. art. 11, § 5, provides that no debt W. 370.

shall be created by any city, unless at the same

time provision shall be made to collect annual2. But, if the plaintiff showed that Edwards

ly a sufficient sum to pay the interest thereon, was the common source, he failed to show and to create a sinking fund of at least 2 per that his title from him was the superior one.

cent, thereon. Held, that a contract whereby a

city executed its notes, payable annually for 10 Without any objection, the deed of trust and

years at 6 per cent. interest, in payment for the the deed made in the enforcement of it were construction of garbage furnaces, was void, no admitted in evidence, and no defects in those provision having been made for the payment of proceedings are set up or relied on, but plain

annual interest and the creation of a sinking

fund, and though bonds had been sold six years tiff seeks to avoid their effect by showing previously for the purpose, among others, of himself to be an innocent purchaser from Ed- erecting such furnaces, there was no evidence wards' heirs. He produces nothing tending

that any part of the moneys thereby realized re

mained in the treasury. to show title in Edwards or his heirs, except

2. A city is not liable for an improvement the fact that Foster, Ludlow & Co., by taking erected according to contract, where the cona deed of trust from Edwards, admitted him

tract was made in violation of a constitutional

provision. to own the land embraced in it. He bought

3. Under a city charter providing that the upon this as his only evidence of title, and city council shall have control of the city and yet claims to be an innocent purchaser with- its finances, and shall exercise its powers by orout notice of the claim of the only persons

dinance, the city cannot enter into a contract

for the construction of an improvement involvagainst whom such evidence could be used.

ing deferred payments of a large amount, exThese papers would furnish no evidence of cept by ordinance; and the council cannot, by title in Edwards against any one but per

motion, authorize the mayor to bind the city to

such contract. sons claiming through them. While the rec

4. A city is not estopped from denying its ord of the deed of trust may not have charged liability for an improvement constructed under plaintiff with notice of itself, or of the sale a contract made in violation of a constitutional under it by Corwin, his actual knowledge of

provision, its existence, and of the other circumstances Appeal from district court, Bexar county; stated above, was enough to put a prudent R. B. Green, Judge. man on inquiry, and the slightest inquiry Action by Henry M. Noel against the city would, it seems to us, have led to knowledge of San Antonio on a contract for the conof the fact that the land had been sold and struction of certain improvements. Defendbought by Foster, Ludlow & vo. He failed ant had judgment, and plaintiff appeals. Afto make inquiry from the very sources sug

firmed. gested by the circumstances within his knowl

Chas. W. Ogden and Clark, Summerlin & edge. Those circumstances were amply suf

Fuller, for appellant. R. B. Minor, for apficient to charge him with notice of the sale

pellee. under the deed of trust. Another reason why we think he cannot be considered an innocent

FLY, J. On November 21, 1893, appellant purchaser is that he has parted with no con

filed this suit, seeking to recover of the city sideration on the faith of the purchase. The

of San Antonio the sum of $13,000. The basis dollar paid was merely nominal, and none of

of the suit was a contract entered into bethe services were rendered before he received

tween one W. H. Garretson and appellee for notice of the claim of defendants. When tes

the construction of two furnaces to be used tifying, during the trial, he stated that he had

for the destruction of city garbage. It was then rendered some of the service, but not

alleged that the city agreed to pay for the that he had done so before he knew of de

furnaces the sum of $13,000, in 10 notes, each fendants' adverse claim under the Corwin

for $1,300, 1 payable annually for 10 years, deed, or before suit was brought, and his

each bearing 6 per cent. interest from date own pleadings show that, in bringing suit, he

of acceptance of the furnaces. A full comrelied on that deed to show common source.

pliance with the terms of the contract was The views we have expressed render it un

alleged on the part of Garretson; that the necessary to consider the numerous other points raised in briefs of appellants, as they 1 Rehearing denied.

notes had been transferred to appellant on, by the making of said alleged contract, as is April 4, 1893,-being on the date of the exe- required by the constitution of the state. (2) cution of the contract, and before any work This contract appears on its face to have done on the furnaces. A failure to pay the been, subsequent to its execution and delivdebt was alleged. In a supplemental peti- ery, altered, in that the stipulation as to the tion it was alleged that on the date of the capacity of the furnaces is changed, or the contract the city of San Antonio had in its cost of the same changed, from the original treasury $15,000, the amount of money aris- amount of $5,000 for one crematory furnace ing from the sale of bonds theretofore made to $13,000 for two crematory furnaces, and for the purpose of erecting two garbage fur- also altering the stipulation as to the time naces, and that the 10 notes represented said in which a given quantity of garbage should garbage fund; that it had been set apart for be cremated, namely, from twelve hours to said purpose; and that appellant had no in- twenty-four hours for the same quantity of terest in the question of the validity of the garbage; and, if not changed in that regard, bonds, as the money was in the treasury it is in that respect so contradictory as to be when the contract was made. It was also void for uncertainty. (3) Because there is no alleged that the issuance of the bonds was proof of authority from the city council of authorized by the vote of the taxpayers, and

the city of San Antonio to the mayor, or actthat provision had been made to pay the in- ing mayor, who is stated to have executed terest on the same, and to create a sinking this contract, for the making of the same, fund of 2 per cent. thereon. Appellee filed a because the pretended authority of the city general demurrer, special exceptions, and an- council is shown to have been given by moswer. The cause was tried before a jury, tion, whereas it is required by the charter and a verdict instructed for appellee.

that the power of the council in this matter During the course of the trial, appellant at- should be exercised by ordinance. (4) Betempted to introduce evidence of the adoption cause there is no proof that at the time of the of a resolution on February 28, 1887, by the issuance, or at the time of the sale, of the city council, setting forth that steps should be bonds issued for the purpose of constructing taken to erect garbage furnaces; of the au

the garbage furnaces, any provision was thority given the mayor on March 18, 1887, made for the levying of a tax to provide a to order a special election to obtain author- | sinking fund for and pay the interest on the ity to issue $150,000 worth of 5 per cent. debt created by the issuance or sale of said bonds, the proceeds to be used in erecting a bonds." The court overruled all the objeccity hall, courthouse, and jail, two garbage

tions but the third, which was sustained; furnaces, rock crushers, street rollers, and and, appellant declining to proceed further, a street-sweeping machines; to show that the verdict was instructed for appellee. The only election took place on April 30, 1887, and re- testimony introduced, or which was attemptsulted in authority being given for the issu- ed to be introduced, besides that enumerated, ance of the bonds; to show authority given

was that of W. H. Garretson, who swore that for the printing, engraving, and sale of the

he was the man with whom the contract was bonds; and to show that the garbage fund made, and that the interlineations of which was credited with $15,000, and that it still complaint was made in the objections to the had to its credit a large part of the fund in rejected testimony were made before the conMarch, 1889. The following is an excerpt tract was signed.

tract was signed. There was no evidence from the minutes of the city council: “April

that the furnaces were ever completed as 30, 1893. W. H. Garretson proposing to contracted for. We quote the following from build two garbage furnaces for $13,000, and the contract that was rejected as testimony: run same for 30 days, which was indorsed by "And the party of the second part agrees, in Dr. Menger and committee on health and san- consideration of the faithful performance itation. The motion of Alderman Elmendorf herein made by said party of the first part, that it be accepted, and the mayor author- and upon the satisfactory test of said furnace ized to enter into contract for same, was as hereinbefore provided, to pay for the said adopted by unanimous vote." The contract furnace the sum of ($13,000.00) thirteen thouon which the suit was based, ordinances pro- sand dollars, payable as follows: In ten viding for taxes to pay the interest and cre- notes, payable annually, for the amount of ate a sinking fund on the bonded debt of the ($1,300.00) thirteen hundred dollars each, city for the years from 1887 to 1893, inclusive, bearing six per cent. interest from acceptand an ordinance permitting the aldermen, ance, payable at San Antonio Nat. Bank. Inin certain contingencies, to elect one of their terest payable annually." number mayor pro tempore, were also offered The constitution (article 11, $ 5) provides in evidence. The whole of the testimony was

that "no debt shall ever be created by any objected to for the following reasons, to wit: city, unless at the same time provision be “(1) Because there is no proof that any pro- niade to assess and collect annually a suflivision was made, at the time the alleged con- cient sum to pay the interest thereon, and to tract between the city and Garretson was en- create a sinking fund at least two per cent. tered into, for the levying of a tax to pro- thereon.” It is further provided, in section vide a sinking fund for, and to pay the inter- 7, that "no debt for any purpose shall ever est on, the debt alleged to have been created be incurred in any manner by any city OE county, unless provision is made at the time as to interest and sinking fund. If a conof creating the same for levying and col- tract made six years after the issuance of lecting a sufficient tax to pay the interest bonds, and made without any apparent referthereon and provide at least two per cent. as ence whatever to the bonds, can be upheld a sinking fund.” While the first and last by proof of provision having been made at portions of section 7 refer to counties and

some time for the payment of the interest and cities on the coast of the Gulf of Mexico, the the creation of a sinking fund for the whole portion above quoted has been held to refer city debt, then the constitutional provisions to each and every city and county in Texas. embodied in sections 5 and 7 are vapid and City of Terrell v. Dessaint, 71 Tex. 770, 9 S. unprofitable declarations, that utterly fail to W. 593. The language of the above consti- attain the object intended. Money may have tutional provisions is too plain to require ex- been, and doubtless was, raised by the sale of planation or construction, and too positive to bonds to erect garbage furnaces, and may admit of evasion. In unambiguous terms, it have been expended for that purpose, but the is provided that on the creation of any debt, contract shows upon its face that it was nevin any manner, by any city or county, pro- er contemplated that the furnaces in question vision must be made at the time of its crea- should be paid for out of it. tion for the annual interest and 2 per cent. But it is urged that the contract is an exsinking fund. Says Judge Gaines, in the ecuted one, the furnaces having been built Dessaint Case, above quoted: "The language according to the terms of the contract, and is general and unqualified, and we find noth. equity and good conscience require that the ing in the context to indicate that the fram- city pay for them, although the contract was ers of the constitution did not mean precise- made in violation of the constitution. We ly what is said; that is, that no city should have seen no authority that would sustain create any debt without providing by taxa- such a proposition. In the case of City of tion for the payment of the sinking fund and San Antonio v. French, 80 Tex. 575, 16 S. W. interest." Does the rejected testimony in- 440, a contract might be implied to pay the dicate that this constitutional rule was com- rent of a house used by the city, because the plied with in making the contract that forms city had the authority to make the contract. the basis of this suit? We are of the opin- The consideration was to be paid out of curion that it fails to do so. On the 4th of rent funds. “It may be," says the opinion, April, 1893, the contract was signed by Gar- “that when a municipal corporation has reretson and French, the acting mayor of San ceived the benefit of a contract which it had Antonio; and there is no pretense that it the power to make, but which was not legalwas a cash transaction, based on money ly entered into, it may be compelled to do theretofore raised on bonds voted by the tax- justice and to pay the consideration, or at payers, but it is provided that the debt of least pay for what it received." This ruling $13,000 shall be paid in 10 annual pay- is based on the ground that in such cases the ments, evidenced by promissory notes in the law will imply a contract, and it is held that sum of $1,300 each, and bearing interest at on no other state of facts will the implication the rate of 6 per cent. per annum. The arise. The implication can never arise that whole transaction was independent of, and a contract was made that is violative of the without reference to, any sums that may constitution. Berlin Iron Bridge Co. v. City have been realized from the sale of bonds is- of San Antonio, 62 Fed. 882; City of Bryan sued in 1887,--six years before the contract v. Page, 51 Tex. 532; Zottman v. San Franwas executed. If, as contended by appel- | cisco, 20 Cal. 96. None of the authorities citlant, it was a contract based on money then ed by appellant militate against the position in the treasury, why give those interest-bear- taken by this court. It is provided in secing evidences of debt, payable so long in fu- tion 42 of the charter that "the city council ture? A cash transaction, providing for the shall have the care, management and control consideration to be paid in 10-year payments, of the city and its property and finances; and with a good rate of interest, would be an ab- shall have power to enact and ordain any and surdity and a contradiction of terms. As be- all ordinances not repugnant to the constitufore stated, there is no connection whatever tion and laws of this state, and such ordishown by the evidence between the bonds nances to alter, modify or repeal, and shall issued in 1887 and the contract made in 1893, have power by ordinance.” And then follow and, if at that time there was a dollar of the sections from 43 to and including 102, enumoney realized from bonds in the city treas- merating the different powers and duties of ury, it does not appear in the record. We do the city government. Each of these sections not mention the latter fact as having con- is controlled by and connected with section trolling influence on our decision, for, if it 42, above quoted, which prescribes the manhad been shown that the money realized from ner in which the powers and duties enumeratthe sale of the bonds for garbage furnaces ed in each section must be performed, -as was in the treasury, we hold that it would much so as though it were inserted before not render valid a contract in which the con- each of them. The mode prescribed is by orsideration was evidenced by notes due on 10 dinance, and, being expressly prescribed, a yearly payments, no action being taken at resolution or motion will not be held equivathe time to meet the constitutional provision | lent to the ordinance. 1 Dill. Mun. Corp. $ 307, and note; McGavock v. City of Omaha of the city council to rescind and repudiate (Neb.) 58 N. W. 543; Board v. De Kay, 148 it at the earliest moment. It may be that U. S. 591, 13 Sup. Ct. 706. The authority for justice "moved with a leaden heel,” but the entering into the contract must be found, if act, though tardy, was right when at last at all, in one or more of the sections from 43 done. When the council tries to perform this to 102; and, unless the contract with appel- act of justice to the municipality, their atlant was entered into by ordinance, it must tempt is claimed to be the basis for a suit perforce be held invalid. Says Chief Justice against the corporation. We do not believe Marshall, in Head v. Insurance Co., 2 Cranch, that the breach of such a contract can form 127: “The act of incorporation is to them an the basis for any right of action. "To hold," enabling act. It gives them all power they

says the supreme court of the United States possess. It enables them to contract, and, in Thomas v. Railway Co., 101 U. S. 85, “that when it prescribes to them a mode of con- this can be done, is, in our opinion, to hold tracting, they must observe that mode, or the that any act done under a void contract instrument no more creates a contract than makes all its parts valid, and that, the more if the body had never been incorporated." you do under a contract forbidden by law, Section 220 of the charter prescribes the the stronger the claim to its enforcement in form for all ordinances, as follows: "The the courts." The nonenforcement of the constyle of the ordinances shall be: "Be it or

tract may be a hardship upon the appellant, dained by the city council of the city of San but it is one that he brought upon himself. Antonio.'” This charter provision is as es- He voluntarily entered into a contract which sential to the validity of the city ordinances he knew, or at least is charged with knowas the enacting clause to the validity of the ing, was unconstitutional and void, and has statutes. The position assumed does not in- not placed himself in a position to obtain rehibit, nor in any manner interfere with, the dress at the hands of the courts. The judgpayment of the current expenses of the city ment will be affirmed. by motion or resolution, but is an enunciation of the proposition that under the pro- JAMES, C. J., entered his disqualification, visions of the charter the municipal authori- | and did not sit in this case. ties of the city of San Antonio cannot enter into a valid contract for the expenditure of large sums of money, evidenced by interestbearing promissory notes of the city, running

TINSLEY Y. ANDERSON.1 for a great length of time, in violation of the

(Court of Civil Appeals of Texas. Nov. 13, demands of its charter. Recurring to the

1895.) proposition that the city is estopped, the

OFFER TO BUY LAND - BREACH OF CONTRACT contract having been executed, from setting

PRINCIPAL AND AGENT. up its invalidity, it may be said that as a

Plaintiff, who was authorized to sell cergeneral rule the doctrine of estoppel applies tain land for the owners (his compensation to be alike to corporations and individuals. But it

any excess of a specified price), procured a writ

ten offer from defendant to purchase the same cannot be applied to render valid and binding

at a price in advance of that fixed by the owna contract that the corporation was prohibit- ers; but defendant refused to comply with his ed from making. The application of the doc

contract, though the owners of the land exetrine of estoppel to municipal corporations is

cuted to him a deed thereof. There was noth

ing to indicate that the land, at the time of the confined to cases in which they have the default, was not worth the sum which defendpower to contract. But where "the act un- ant agreed to pay. Held not to show any reladertaken was, in and of itself, ultra vires of

tion of principal and agent, so as to render de

fendant liable for the difference between the the corporation, no act of that body can have

fixed price and the amount which the latter the effect to estop it to allege its want of agreed to pay. Tinsley v. Dowell, 26 s. w. power to do what was undertaken.” Bige- 946, 87 Tex. 23, followed. low, Estop. 466, 467; State v. Murphy Mo. Appeal from district court, Bexar county; Sup.) 31 S. W. 784; Union Depot Co. v. City S. G. Newton, Judge. of St. Louis, 76 Mo. 393; Pennsylvania R. Action by James Anderson against ThomCo. v. St. Louis, A. & T. H. R. Co., 118 U. S. as Tinsley on a contract to purchase land. 290, 6 Sup. Ct. 1094; Green Bay & M. R. Co. From a judgment for plaintiff, defendant v. Union Steamboat Co., 107 U. S. 98, 2 Sup. appeals.

appeals. Reversed. Ct. 221; Davis v. Railroad Co., 131 Mass.

Simpson & Onion, for appellant. Webb & 258. The charter of the city of San Antonio

Finley, for appellee. was granted for the public good, and every duty enjoined, obligation required, and pow

FLY, J. This suit is founded upon the er granted are expressed in that instrument, following contract: “San Antonio, Texas, the whole being governed and controlled by

August 26th, 1890. To James Anderson, 11 the constitutional provisions on the subject.

E. Houston St., San Antonio: I hereby ofThe contract entered into with appellant was

fer to you the sum of two hundred and sevin violation of the constitution and the char

enty-five dollars per acre for twenty-five ter, and the municipal authorities had no

acres in a square body to be taken out of the power to make it. Having entered into the invalid and illegal contract, it was the duty 1 Rehearing denied.

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northwest corner of the upper Gideon Lee tract, the northwest corner of said square body to be two hundred varas from the junction of the west line of said Lee tract with the line of the old city grant, and to have said west line the west boundary line of said square body, as per map. Payment to be made as follows: One third cash down, balance in equal installments in one and two years, with eight per cent. interest. The title to said twenty-five acres to be delivered to me perfect. This offer to remain in force ten days from this date.” This was signed by appellant. It is alleged "that, at the time defendant made said offer, he understood that plaintiff expected to procure said land for him at two hundred and forty dollars per acre, and that plaintiff would receive, as compensation for his services, the sum of thirty-five dollars per acre on said twenty-five acres of land, and defendant agreed that plaintiff should receive said compensation; that, in pursuance of said offer, plaintiff procured said land for defendant, and, before the expiration of ten days from said August 26, 1890, notified him that said offer was accepted; that defendant knew that said land was owned by J. V. Dignowity, C. W. Ogden, J. H. James, and Dan Sullivan, and that the title thereto would come from said owners; that, immediately after said offer, plaintiff, on behalf of the defendant, began negotiations with said owners for the purchase of said land, and they, at the special instance and request of plaintiff, made, executed, and delivered to defendant, upon the terms proposed by him and accepted by plaintiff, a deed conveying a good and perfect title to said land, whereby defendant promised and became liable to pay plaintiff said sum of eight hundred and seventy-five dollars.”

This is a plain declaration on a contract to purchase land, and the liability of the appellant is based on his failure to carry out the terms of the contract. Appellee did not own the land, but was acting for the owners in the sale of it. It is neither alleged nor proved that appellee had been made and constituted the agent of appellant to buy the land, and that he was to receive, as remuneration for his services, the sum of $35 per acre, but the written contract shows that it was a mere naked offer to buy land at a certain price. The contract must be looked to as the culmination of the wishes of the parties, and it certainly does not indicate that the relation of principal and agent existed between the parties. We can see no material difference between this case and that of Tinsley v. Dowell (Tex. Civ. App.) 24 S. W. 928, and 87 Tex. 23, 26 S. W. 946. The facts in that case show that Rogers and wife owned certain outlots in the city of Austin, which Dowell was authorized to sell. Dowell was to receive for his services 212 per cent. commissions and all above a stated price. Tinslev agreed to buy the land from

.

Dowell for a sum $900 above the price fixed by Rogers. Tinsley failed to comply with his contract, although Rogers and wife were ready and willing to execute the deed to him. Dowell sued for the excess over the limit. In the case before us, Dignowity and others owned certain land in the city of San Antonio, which Anderson was authorized to sell, and his compensation was to be all that he obtained in excess of $240 per acre. Anderson made a contract of sale with Tinsley at a price exceeding that fixed by the owners in the sum of $875. Tinsley failed to comply with his contract, although the owners of the land executed a deed to the land to him. Anderson sued for the excess over the price fixed by the owners of the land. In both cases there was nothing to indicate that the land at time of default was not of value equal to the value agreed to be paid by Tinsley. The Dowell Case is decisive of this, and to it we refer for the law applicable to the facts before us.

The former opinion in this case was delivered (28 S. W. 121) before the opinion in the case of Tinsley v. Dowell had been rendered by the supreme court, and the question of Anderson's right to maintain a suit on the contract was not questioned at that time, but the defense was based on other grounds altogether. The case as presented at that time assumed the right of appellee to recover on the contract under a proper state of facts. Our former opinion is in conflict with the Tinsley-Dowell Case, and was followed by the district judge, and the respon. sibility for his rulings must rest on our opinion. We are of opinion that the judgment should be reversed, and the cause remanded.

JAMES, C. J., entered his disqualification, and did not sit in this cause.

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BROWN et al. v. O'BRIEN. (Court of Civil Appeals of Texas. Nov. 7,

1895.) ADVERSE POSSESSION - FIVE-YEARS STATUTE-INCLOSURE-VOID ADMINISTRATOR'S

DEED-ESTOPPEL. 1. To sustain a claim of adverse possession, under the five-years statute, to a tract inclosed with others into one pasture, it was not necessary to show payment of taxes on, or deed for, any other of the tracts inclosed in the pasture.

2. The inclosure and use of part of a tract are sufficient to sustain an adverse claim to the entire tract under the five-years statute.

3. The fact that in defendant's chain of title there was an administrator's certificate of sale, which was void, will not defeat a plea of limitations under the five-years statute.

4. Certain female plaintiffs, when minors, inherited an interest in a land certificate, and married before the commencement of the possession under which defendant claimed title to the land by limitations. Plaintiffs offered a deed, which was read in evidence by consent, executed in a foreign state, by the guardian of taid minors, conveying said certificate, before

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