Webb v. City of Fort Worth Ex Rel. West Texas Const. Co.

BUCK, J. The city of Fort Worth sued, for the use and benefit of the West Texas Construction Company, B. R. Webb, Jr., and Mrs. D. I. Webb, his mother, a widow, for paving done on Pembroke drive and in front of a house owned by B. R. Webb, Jr., and occupied by Mrs. L. I. Webb. It was alleged that all the requisites for fixing a lien of the premises for the payment of the paving were complied with, and that the paving was done, and that the defendants had failed and refused to pay therefor. Defendants alleged that the amount of the indebtedness claimed by plaintiff was below the jurisdiction of the district court, being for $183.60, and therefore pleaded to the jurisdiction of the trial court. The defendants further pleaded that the contract by the city of Fort Worth with the West Texas Construction Company was for the paving of a number of streets in Cheltenham addition, and that the construction company did not complete said contract, and only paved Pembroke drive. Therefore the defendants pleaded that, the contract not having been completed, they did not owe anything to plaintiff. They further pleaded that B. R. Webb, Jr., had given the place to his mother as a homestead, . and that she had homestead rights therein. It was further pleaded that a hearing on the protest of the defendants was denied the defendants, and therefore the assessment was not legal. The defendants’ plea in abatement and to the jurisdiction of the court, and also their general demurrers and special exceptions were overruled by the trial court, to which they excepted. After the evidence was all in, the court gave a peremptory instruction to find for plaintiff against B. R. Webb, Jr., with a foreclosure of the lien on lot 15, block 1, Cheltenham addition to the city of Fort Worth, and upon the verdict rendered by the jury in accordance with certain instructions, the court entered its judgment against B. R. Webb, Jr., for the $183.60, with foreclosure of the plaintiff’s paving lien on the premises involved. From this judgment the defendants have appealed. Opinion. The city commission advertised for bids on the paving of Odessa street, Patton court, Warner road, Benhall court, Dartmoor court, Berkeley place, and Pembroke drive. The amount of paving for which advertisement was made on the several streets or drives, was set out in such notice to the contractors. On the 10th day of October, 1924, notice was given to the property owners on Pembroke drive to be and appear before the city commission of Fort Worth on October 21, 1924, to show cause why the assessment for the paving in front of the property of those liv [792] ing on or albng said drive should not tie made. In this notice it was stated that the West Texas Construction Company had entered into a contract with the city of Fort Worth for the construction of said improvements, and th¿t said contract had been duly approved by the board of commissioners and executed as-required by the city charter, and that said construction company had' executed an approved security and filed the same with said board of commissioners. Said notice was published for five successive days in the Port Worth Record, a newspaper of general circulation in the city of Port Worth. All parties owning property on Pembroke drive were notified to appear before the commissioners at said time and place, when a hearing would be given them concerning all matters set forth in the resolution. Notice to the contractors was given for the paving of Pembroke drive, and the statement was made in said notice that all bids must be filed with the city secretary on or before 9 o’clock a. m. Tuesday, August 12, 1924; that each bid must be accompanied by a certified check on some bank in the city of Port Worth in the sum of 5 per cent, of the amount bid, ..made payable to the auditor of the city of Port Worth; that bond in accordance with said specifications must be furnished by the successful bidder. Hence it appears that before the time of hearing the protest before the city commission, the -paving to be done was limited to Pembroke drive, and that a contract was entered into with the West Texas Construction Company for the paving of Pembroke drive alone. Notice was given to the abutting property owners that Pembroke drive alone was to be paved.' In Berwind v. G. & H. Investment Co., 20 Tex. Civ. App. 426, 50 S. W. 413, writ of error refused, it was held where the city council, by resolution, provided for construction of sidewalks forming a continuous system, it had no right to accept a part performance, leaving intervening spaces of greater or less extent between the portions of the sidewalk; that where a city contracts for a continuous line of sidewalk, and accepts the construction only of a portion thereof, with intervening spaces unpaved, the contractor cannot recover thereon on a quantum, valobat, or for any benefit that may accrue to abutting property owners, the action of the council being void. In the cited case it is stated that the resolution of the city council declaring the necessity for the sidewalks stated that the streets were adjacent to each other, and a continuous and connected system' of sidewalks was provided for. The council authorized the mayor to advertise for bids for construction of the work as provided for in the resolution. The contract was executed, also in accordance with the resolution. The court properly says that a property owner might be willing to pay for assessment, for the construction of a continuous sidewalk, while he would not be willing to pay for a pro rata part of a sidewalk which was not continuous and had skips in it. We think that this case and the other cases cited by appellants are easily distinguishable from the instant case. The Charter of the city of Fort Worth, being section 5 of chapter XIV of the city charter in force at that time, provides: “Bids shall be filed with the Board of Commissioners, and opened and read in open meeting thereof. Said Board may accept such bid or bids, as it may deem most beneficial to the city, and the owner of the property abutting the proposed improvement, or may reject any and all bids, and may accept different bids for parts of the improvement and accept such bid or bids on different plans, or methods, or for different materials, as it may deem best. No bid shall be amended, revised or changed after being filed.” The contract under which the work was done provided that the contract was separate as to each street to the same extent as if separate instruments had been executed for each street and separate assessment proceedings had for each street. We do not think that in overruling the assignment directed to the failure of the city to have all of the streets named in the first resolution paved, but the city having contracted with the West Texas Construction Company to pave Pembroke drive alone, such facts make this case subject to the ruling of the Galveston Court of Civil Appeals in Berwind v. G. & H. Investment Co., supra. Therefore such assignment is overruled. Nor do we think that Mrs. L. I. Webb had any homestead rights in the premises. Mr. Webb testified that the title to the property was in his name; that he was a married man and owned a home in San Antonio; that he purchased this house as a home for his mother, and that she lived in the house with her maiden daughter; that she agreed to pay the taxes, the insurance, and the repairs on the premises; that his mother owned other property in the city of Port Worth consisting of houses and lots, etc., and was financially able to buy a home for herself, and under certain conditions was financially able to support herself from' the revenues and rentals of the other property. Upon a contract being sent to B. R. Webb, Jr., at San Antonio, for the paving, he wrote to an officer of the construction company that while he owned the property, his mother lived thereon, and he would leave the matter of whether or not the improvement should be had to her and her neighbors. Under express statutory provision in some states a person, owning and occupying a dwelling and other improvements on land of which he is rightfully in possession under a lease for a term of years, may claim the premises as his homestead. 29 O. J. 847, § 159. See Texas authorities cited under note 69. But in the instant case, there is no [793] pretense that Mrs. Webb had any lease on the premises she occupied for a term of years. At most, she had the right of tenancy at will. At any time, B. R. Webb, Jr., had the right to dispossess her and retake possession of the property. Therefore we conclude that there were no homestead rights shown to be vested in Mrs. L. I. Webb such, as would preclude the enforcement of the paving lien against the premises. It is also contended that the evidence of some of the witnesses is that the city commission had advised them to be present at 9 o’clock a. m., October 21, 1924, for the purpose of urging any protest against the paving, and that a Miss Burchill testified that she lived at that time at the Texas Hotel, and left the hotel at a quarter of 9 o’clock and. arrived at the city hall in a very short time. That there was an enormous crowd there, and she asked Mr. Burton, whom she had always known and who was mayor at that time, if she could not appear before the body, and he asked her what for, and she said she wanted to protest the paving of Pembroke drive, and he said that that matter was already passed. That this was at 9 o’clock in the morning. The minutes of the council show that the city commissioners met in regular session on October 21,1924, at 9 o’clock a. m. This is a collateral attack on the action of the city council. See Glenn v. Dallas County Bois D’Arc Island Levee Dist., 282 S. W. 339, by the Dallas Court of Civil Appeals, 275 S. W. 137; and the same case by the Commission of Appeals in 288 S. W. 165. A homestead interest cannot be claimed under parol gift unless the facts exist which would vest title in the donee. Elam v. Carter, 55 Tex. Civ. App. 649, 119 S. W. 914; Page v. Vaughan (Tex. Civ. App.) 173 S. W. 541; Leonard v. Cleburne Roller Mills Co. (Tex. Civ. App.) 229 S. W. 605. In Ryan v. Lofton (Tex. Civ. App.) 190 S. W. 752, 755, it is said: “While in many, if not m,ost, of the states having the same or similar statutory adoption of the English statute of frauds, enacted in 1676 (29 Car. LI, c. 3, § 1), courts of equity have been very liberal in construing such statutes and in giving relief, yet our own courts have seemingly been loath to depart from the somewhat rigorous terms of the statute. This conservative sentiment was voiced in the opinions of Chief Justice Hemp-hill and Associate Justice Lipscomb in one of the leading cases on this question. Garner v. Stubblefield, reported in 5 Tex. 552. Early in our judicial history, however, the Supreme .Court of Texas modified the statutory inhibition, by enforcing specific performance of a parol contract to convey land where valuable improvements had been made by the vendee or donee, with the knowledge and consent of the vendor or donor.” We think in this case both B. R. Webb, Jr., and Mrs. L. I. Webb, by their statements made to the West Texas Construction Company, conclusively showed that it was not the intention of B. R. Webb, Jr., to make a parol gift of the property to his mother, but mei-ely to give her the right of use thereof at will. We think that in view of the minutes of the proceedings of the city commission that the commission met that day at 9 o’clock, and in view of the presumption that always obtains in favor of the correctness of such quasi judicial bodies as the city commission, that the trial court did not err in instructing a verdict for the plaintiffs. Therefore the judgment of the trial court is affirmed.