
    CITY OF PARIS v. BRAY et ux.
    (No. 2399.)
    (Supreme Court of Texas.
    April 14, 1915.)
    1. Pleading- <§=>312 — Exhibits — Variance Between Pleading and Attached Exhibit.
    Under district court rule 19 (142 S. W. xviii); providing that written instruments, constituting in whole or in part the cause of action sued on, may be made a part of the pleading by copies thereof being attached and referred to as such, but that no other instrument in writing, which is not sued on as a cause of action or set up in defense, but is designed to be used only as evidence, shall be made an exhibit, and that, when it shall be so attempted by attaching such instrument and referring to it as such, the court will cause the instrument to be detached from the pleading, though, under a city charter and a general improvement ordinance requiring notice to be given property owners before the making of assessments for street improvements, an assessment was invalid unless notice was given, the published notice to property owners was not the foundation of the cause of action in a suit to recover the amount of the assessment, and, though a copy thereof was attached to the petition, it could not affect the sufficiency of the petition; and hence, where the petition alleged that notice was duly given, it was not demur-rable, though the purported copy of the notice showed that defendant’s name was not included in the property owners to whom the notice was addressed, but that the name of plaintiff’s husband was so included.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 943, 946, 948; Dec. Dig. <§=>312.]
    2. Municipal Corporations <§=>366 — Street Improvements — Advertising jtor Bids — Completion oe Contract by City.
    Under a city charter and a general improvement ordinance requiring contracts for street improvements to be made only after public advertisement for competitive bids, where a contract so made after due advertisement was abandoned by the contractor before the completion of the work, the city could take over the work and complete it, as authorized by the contract, without again advertising for bids; the assessment against abutting owners having been based on the contractor’s bid, and not having been affected by the city’s completion of the work, [Ed. Note. — For other cases, see , Municipal Corporations, Cent. Dig. § 899; Dec. Dig. <§=> 366.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Suit by the City of Paris against E. F. Bray and wife. Judgment for defendants on demurrer was affirmed by the Court of Civil Appeals for the Sixth District (142 S. W. 927), and plaintiff brings error.
    Reversed and remanded.
    Wright & Patrick, of Paris, for plaintiff in error. Burdett & Connor, of Paris, for defendants in error.
   PHILLIPS, J.

The suit was instituted by the city of Paris to recover the amount of a paving assessment, together with reasonable attorneys’ fees, for paving done in front of property of E. C. Bray (E. F. Bray being her husband), situated on a certain street in the city, and for foreclosure of a lien against the property. A special demurrer to the city’s petition was sustained in the trial court, and the case dismissed. On the city’s appeal the honorable Court of Civil Appeals for the Sixth District held that the trial court erroneously sustained the special demurrer, but affirmed the judgment upon what it considered a fundamental error disclosed upon the city’s petition.

As essential to the validity of such an assessment, the special charter of the city provides that any person interested in any property claimed to be subject to the assessment shall be entitled to a full and fair hearing before the city council on all matters affecting the property or any claim of personal liability, and the council is required to make rules, providing an opportunity for such a hearing before the assessment is levied or finally determined upon; notice of the hearing to be given personally or by publication in a daily newspaper of general circulation in the city for not less than ten successive days. Under the charter there is in force in the city a general improvement ordinance upon the subject of the paving of the city streets. It provides that, when such an improvement is contemplated, a - resolution shall first be passed by the council, designating the street or portion thereof to be' paved, the general character of the pavement, and directing the city engineer to submit a report at its next meeting of its estimated cost, accompanied by plans and specifications, with a list of the property owners whose property on the street will be affected and the estimated cost of the improvement in front of each piece of abutting property, etc. If, upon the amendment or adoption of this report, the council shall decide to make the improvement, it shall instruct the city secretary to cause a notice to be published in the official paper of the city for ten days, reciting the passage of the resolution, the general nature of the improvement, its total estimated cost, the name of each owner of property abutting on the street, referring to the plans and specifications on file for the ascertainment of the dimensions of his property and the estimated cost to him, which shall be one-third of the cost of the improvement in front of his property, the estimated total cost to the city, and the date and time for property owners to present their objections to the improvement, etc.

The petition of the city alleged the adoption by the council on January 14, 1907, of such a resolution as is provided for by the general improvement ordinance, with respect to the paving of a portion of a street in the city upon which the property of Mrs. Bray abutted, the later submission of the engineer’s report, and its subsequent adoption, and the direction given by the council to the secretary to give notice of its action to the property owners and the date appointed for a hearing before the council on their behalf, by publication for ten successive days in the Paris Horning News. It alleged that the publication of such notice was duly made, and that it notified all property owners that the hearing provided for would be had on March 25, 1907, and likewise recited that Mrs. Bray and her husband were property owners on the street proposed to be paved. It declared that a copy of the notice was attached to the petition marked Exhibit D. In the purported copy attached, the name of Mrs. Bray did not appear in the list of property owners given, though the name of E. P. Bray was recited. The honorable Court of Civil Appeals held that it accordingly affirmatively appeared from the petition that Mrs. Bray had no notice of the assessment, which would render it void as to her.

In respect to the averment of notice given by the city to Mrs. Bray of the proposed assessment, the petition itself was sufficient on general demurrer. Having alleged, in substance, that due notice, to all property owners affected, of the action of the city council in relation to the proposed improvement and assessment, was given by a publication for a stated period in a designated newspaper, reciting such action, and that Mrs. Bray was one of such property owners, the effect of the petition was that notice of the proposed assessment was duly given her through that medium. The purported copy of the published notice was in a sense inconsistent with the allegation in that Mrs. Bray’s name was omitted from the list of those stated in the notice as constituting the owners of property abutting on the street.

Only such written instruments may properly be made a part of a pleading by reference and attaching the originals or copies as constitute, in whole or in part, the cause of action sued on, or the matter pleaded in defense. Those attached but designed to be used only as evidence in support of some allegations the court will, upon its own motion, detach from the pleading and adjudge as constituting no part of it. Rule 19 (142 S. W. xviii) for district courts. An assessment of this nature is invalid, unless the owner of the property affected by it is given notice and an opportunity to be heard before it is imposed against him. But the notice is not a written instrument forming in any part the basis of the cause of action for the enforcement of the assessment. The cause of action in such a case is constituted by the debt and lien. It is not one founded in whole or in part upon any written instrument, but has its origin in the provisions of law governing the levy of the assessment, and proceeds from their due execution and observance by the city authorities. The notice here was one of the requirements of the law, but any document used for that purpose was no more a written instrument constituting a foundation for the cause of action than were the charter provisions and ordinances of the city relating to such assessments, and which embodied that requirement as a part of the procedure essential to a valid levy. The exhibit was therefore an unauthorized one, and, under the established rule,, could not be considered in testing the sufficiency of the pleading.

We think the holding of the Court of Civil Appeals upon the other question discussed in its opinion was correct. The charter of the city provides that no contract for street improvements of this nature shall be made, except after public advertisement for competitive bids for the work. And by the general improvement ordinance it is required that the council, if after consideration of the objections of property owners of the opinion that the improvement should be made, shall direct the mayor to advertise for competitive bids for its construction in accordance with the plans and specifications of the engineer. The petition alleged that a hearing of the objections urged by property owners was had, and that they were overruled; that thereupon the mayor and secretary were by resolution authorized to advertise for bids for the work, which was done; that bids were received, and that of a certain firm of contractors was declared by the council to be the lowest and best bid; that a special ordinance providing the particular improvement and levying against the abutting property owners their proportionate assessments was then duly passed; that thereafter the contract with the contractors was authorized and executed; that they performed a part of the work, but failed to continue it, and, upon the repudiation of their bond by their surety, the city made full settlement with them for the work performed, and, under the terms of the contract, took over the work and completed it in accordance with the contract.

The substance of the exception urged by the defendants and sustained by the trial court was that the effect of the city’s action in completing the improvement, after the contractors failed to prosecute it, without a readvertisement for further bids for the unfinished construction and the letting of another contract, was to vitiate the assessment. It appears from the petition that the assessment was made upon the basis of cost fixed by what the council deemed the lowest and best bid for the work and the contract entered into by the city on the award under that bid; the entire cost of the work to the abutting property owners being in no way affected by the city’s action in finishing the improvement after the failure of the contractors to perform their contract. The property owners acquired the full benefit of competitive bids in the determination of the amount of the assessment made against them. The requirement of the general ordinance in that respect was therefore fully met, and it was not necessary for the city to readvertise for further bids and let another contract upon' the default of the contractors. That might have entailed a complete readjustment of the entire plan for the improvement, including alteration of the assessment and other consequences of like nature clearly not within the contemplation of either the charter or the ordinance, because manifestly not provided against. The provision in the general ordinance with reference to inviting bids and the contract for the improvement applies, in our opinion, only to the original contract for the construction, and does not necessitate a second advertisement for bids and another contract, where, in the progress of the work, there develops such a condition as the petition here reveals. In re John G. Leeds, 53 N. Y. 400; City of Milbank v. Western Surety Co., 21 S. D. 261, 111 N. W. 561.

The judgments of the district court and the Court of Civil Appeals are reversed, and the cause remanded. 
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