On Motion for Rehearing. We are in accord with the view expressed in the original opinion that this case should be reversed, but do not reach this conclusion upon the precise reasoning used by Judge RANDOLPH.
The jury, in response to appropriate questions, answered that all bidders knew that they would not be required to perform any labor or furnish any material until and unless appellee Hutchinson county had made provisions with which to pay for same and that they would not be required to begin work until this was done.
It is inferable from the record that it was in contemplation of the parties to raise such funds from the proceeds of a bond issue to be immediately submitted to a vote of the people of Hutchinson county. This was done and the funds thus made available. We have, therefore, read into the transaction a conditional bid with an unconditional acceptance within a reasonable time thereafter by the county. If this conclusion is correct, it may be admitted that at the moment of making the original so-called contract between the parties, it was in violation of the constitutional provision quoted in the original opinion, and this without affecting the final conclusion we reach. In other words, no binding contract resulted until funds were made available in the manner pointed out above. Hence, no debt was created until then. When the bonds were legally issued and sold and their proceeds made available, the act of thereafter making a tax levy was a mere ministerial duty, the enforcement of which could be compelled by appropriate mandamus proceedings. City of Odessa v. Elliott (Tex.Civ.App.) 47 S.W.2d 866, 869.
This entire transaction seems to evidence the fact that all bidders made an offer to pave the Hutchinson county roads when and if funds were made available as above stated. The county, having proceeded to vote and sell these bonds for the purpose indicated, by said act met the condition of the bid and thus accepted the offer made, and a "debt" was then and there created within the meaning of article 11, § 7, of the state Constitution.
Suppose the county had failed to provide the funds and appellant had thereafter sued *Page 516 appellee for a breach of the alleged contract which had remained purely executory and without having performed any of its terms. It seems plain that no cause of action would have existed under such facts, for reasons which we shall presently discuss.
The Supreme Court, in the recent case of Harlingen Independent School District v. C. H. Page Bro. (Tex.Com.App.) 48 S.W.2d 983, 984, had before it a suit for breach of an executory contract with an independent school district, made before bonds were voted and at a time when the values of the district would not sustain the contemplated bond issue. Judgment was given for the portion of the alleged contract that was executed, but denied for that portion which remained executory and unperformed. We think a careful analysis of this case will show that in its final result it supports the conclusions here announced, though some of the broad language used therein might be construed against it.
It has ofttimes been held that an offer may be withdrawn at any time before acceptance, unless the offer is based upon a consideration separate and apart from that which by acceptance would become the consideration. We construe the bids as a mere offer to pave the roads of Hutchinson county, which offer Hutchinson county in a short time accepted. We would have here an entirely different case if Hutchinson county had refused to go forward with the contract before any bond issue was voted and sold and any work done and accepted under the original bid. The principles of law herein mentioned will be found discussed in Williams v. Graves, 7 Tex. Civ. App. 356, 26 S.W. 334; 10 Tex.Jur. 33, § 15, and authorities there collated; and Norwood v. Adams (Tex.Civ.App.) 51 S.W.2d 625, 627.
We limit the announcement herein to the particular facts of this case.
In view of the possibility of a future trial upon phases of this case other than quantum meruit, we deem it necessary to make the following observations:
The contract between the parties herein contains this clause: "Engineer as referee: It is mutually agreed by both parties to this contract that the engineer shall act as referee in all questions arising under the terms of this contract between the parties hereto and that the decision of the engineer in such cases shall be final and binding upon both alike."
Hess Co. were selected to supervise the work done by appellant herein, and it is claimed that as to certain matters in dispute, they having approved the estimates, such approval became binding upon appellee. The appellee was not necessarily bound by the decision of the engineers named. It might, under appropriate pleadings and proof, avoid same for fraud, Lasater v. Lopez (Tex.Civ.App.) 202 S.W. 1039; likewise for acts beyond the scope of the powers granted to such engineers by the terms of the contract, Harrell v. City of Lufkin (Tex.Com.App.)280 S.W. 174.
Again, a party seeking to avoid a contract upon the ground that the compensation was so grossly excessive as to amount to legal fraud must assume the burden of proving such fact, and in determining this question the circumstances existing at the time the contract was executed must be looked to. Therefore, in submitting this question, if it is submitted, it must be determined as of the date of the contract. Gulf Bitulithic Co. v. Nueces County (Tex.Com.App.) 11 S.W.2d 305, 310. It is further observed that in passing on this matter the contract as a whole must be considered rather than isolated portions of same.
These are all the questions which we deem necessary to mention if the case should be again tried, either upon the theory of fraud based upon an unconscionable price or for a breach of the contract.
The appellee's motion for rehearing is overruled.