Hollingsworth v. Young County

STEPHENS, Associate Justice. At the February term, 1890, of the Commissioners’ Court of Young County the following order was made: “R. Hollingsworth is hereby appointed agent for the Young County school land in Baylor County, and that he is to survey the land into tracts as the court may see proper, same to be to the best interest of the county in the sale of the said land, and no tract to be less than 160 acres. All of the expense of the surveying to be done at the expense of the said Hollingsworth, and for the faithful performance of the work that he be required to execute a bond of $1,000, and that he shall be allowed 5 percent on all lands sold.” Accepting this appointment, R. Hollingsworth went to Baylor County and surveyed, subdivided and classified 9,157 acres of land situated in that county, being school lands of Young County, doing the work in about 60 days and paying out $400 for expenses. At the April term, 1890, he made report of this work to the Commissioners’ Court, and thereafter acted as agent for the county (selling a portion of said lands and receiving as commissions on said sales the sum of $609) until the May term, 1892, when the Commissioners’ Court took the lands off the market and leased them for eleven years. Hollingsworth was notified of this action and acquiesced therein. At the December term, 1903, an order was entered cancelling all previous appointments of agents to sell the school lands of Young County, and authorizing the county judge to sell the same to W. T. Waggoner at $3.80 per acre, in pursuance of which a conveyance was made to him. This suit was brought to recover commissions of 5 percent on the gross amount of this sale, less a credit of $609, the Commissioners’ Court having previously rejected the claim, and from a. judgment of the District Court also denying the claim this appeal is prosecuted. [592] The order providing for the subdivision and classification of the Young County school lands and allowing a commission of 5 percent for selling the same, was a valid order and entitled Hollingsworth, on complying with its terms, to be compensated for his services out of the general revenues of the county. See Dallas County v. Club Land & Cattle Co., 95 Texas, 200, for a discussion of this question. This claim was not barred by limitation when suit was brought, April 4, 1905, since, even according to the allegations of the answer of Young County, the' temporary withdrawal of the lands from sale for eleven years was acquiesced in by Hollingsworth on receiving notice from the county. In other words, as we interpret the record, this action on the part of the county, which might otherwise have amounted to a repudiation of the contract with Hollingsworth, was by mutual consent a mere modification of the original contract. It follows from these conclusions that Hollingsworth was entitled to a judgment for the amount of his claim, less the admitted credit, and the judgment will consequently be reversed and here so rendered. Reversed and rendered.