Opinion
No. 51.
November 20, 1925.
Appeal from District Court, Stephens County; C. O. Hamlin, Judge.
Action by W. A. Haynes against Stephens County. Judgment for plaintiff, and defendant appeals. Affirmed.
Goggans Allison, of Breckenridge, for appellant.
H. A. Leaverton, of Breckenridge, for appellee.
The trial was before court without the aid of a jury. Appellee was appointed, by the commissioners' court, road superintendent of appellant county for a term of two years at a salary of $250 per month, under an act of Legislature creating such office. After having duly qualified and served one year, said court without notice to appellee, entered an order reappointing appellee, and reserving the right to discharge him at any time and reducing his salary to $200 per month. Appellee was informed by one of the commissioners that his salary had been cut, and later was so informed by the court, but not as the other terms of the order. At this time, according to appellee's testimony, he stated to the court:
"I said I was sorry they saw fit to do that, but we had a big program of work on hand, and I wanted to get along harmoniously with the court, and we would not discuss that matter with the court at that time."
Thereafter warrants were issued to appellee for $200 per month. There is no showing that such warrants contained any statement showing that they were paid or accepted in full settlement. Suit was brought for the remaining salary under the original appointment, and judgment was for appellee for $600.
No contention was made as to appellee's services giving full satisfaction. The record shows he was a competent, diligent, and faithful officer. The appellant submits three grounds for reversal: First, there was a mutual agreement to reduce appellee's salary. This contention is disposed of by that part of the record quoted, which is that the order was entered without notice, and that when notified his salary was cut, he declined to agree to the action taken. Second, that there was an accord and satisfaction. This fails, because there was no proof that appellee accepted the warrants in full satisfaction. Graham v. Kesseler (Tex.Civ.App.) 192 S.W. 299; Early-Foster v. Klump Co. (Tex.Civ.App.) 229 S.W. 1015-1024; Warner v. Channell Chemical Co., 121 Wn. 237, 208 P. 1104. Third, that appellee, having accepted the warrants under the second order, waived his claim and is estopped, citing 26 Cyc. 1039, and authorities supporting the text. It is apparent that this contention cannot be sustained under the rule here stated. Here there is no showing that appellee presented his bill monthly for $200, nor that he ever gave a receipt in full, or that he was ever notified that the warrants tendered were in full settlement.
The other authorities cited are based on consent of an employee to continue the employment at less salary. It is not believed that appellee's testimony conclusively shows consent on his part to the reduction of his salary. Again, ratification must be based on full knowledge, and such knowledge is not shown to appellee of that part of the order authorizing the court to discharge him at any time. Appellee was not bound to take notice of the order. It was void. As stated, his was a public office and was not vacant.
We conclude the trial court was justified in his conclusion that appellee did not consent to the attempted reduction and did not accept the amount received in full satisfaction, and, believing that in this case "the laborer is worthy of his hire," the judgment is affirmed.