Atkinson v. Jackson Bros.

• Decision Date: 03 December 1923
• Docket Number: (No. 6669.)
• Citation: 259 S.W. 280
• Parties: ATKINSON et al. v. JACKSON BROS. et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

259 S.W. 280

ATKINSON et al. v. JACKSON BROS. et al.^*

(No. 6669.)

Court of Civil Appeals of Texas.

December 3, 1923.

Rehearing Granted in Part and in Part Refused January 9, 1924.

Further Rehearing Denied February 13, 1924.

Appeal from District Court, Coleman County; J. O. Woodward, Judge.

Action by the Leeper-Curd Lumber Company, a partnership, against Jackson Bros. and J. B. Atkinson and wife. From the judgment rendered, plaintiffs and defendants appeal. Reformed and affirmed.

Critz & Woodward, of Coleman, for appellants Atkinson and wife.

Snodgrass, Dibrell & Snodgrass, of Coleman, for appellant Leeper-Curd Lumber Co.

Jenkins & Miller, of Brownwood, for appellees Jackson Bros.

Statement.

BLAIR, J.

Leeper-Curd Lumber Company, a partnership, sued Jackson Bros., a partnership, and J. B. Atkinson and his wife, Mary E. Atkinson, to recover on an account, alleging that Jackson Bros. as building contractors had by a written contract agreed to furnish all labor and material necessary to construct, in accordance with certain plans and specifications and addenda thereto, a residence for the said J. B. Atkinson and wife, on a lot in Coleman, for a total consideration of $7,582.50; that plaintiff furnished Jackson Bros. the lumber and material with which the residence was constructed; that it was agreed between Jackson Bros., J. B. Atkinson, and plaintiff that Atkinson, the owner, would pay direct to plaintiff on the account such amounts as would become due Jackson Bros. as the work on the residence progressed; that pursuant to such agreement Atkinson did pay plaintiff at various times amounts aggregating $1,600; that there was a balance of 1,045.75 still due on said account, with interest from January 1, 1922; that Jackson Bros. had completed the building, and, although J. B. Atkinson and his wife had accepted it and still owed Jackson Bros. more than the amount of plaintiff's debt on the contract, yet all the defendants refused to pay said account or any part of it. Plaintiff further alleged a compliance with the statute authorizing the establishing of a materialman's lien on the premises and residence constructed under the contract, and sought a foreclosure thereof. Plaintiff further alleged, by trial amendment, that Mary E. Atkinson did not sign the contract with Jackson Bros. to construct the building, but that her husband, J. B. Atkinson, in executing such contract, acted as her agent, with her knowledge and consent, and that she had ratified the contract, which was alleged to have been made for the benefit of her separate property, materially enhancing the value thereof.

Jackson Bros. filed an answer to plaintiff's petition, and to defendants Atkinson and wife's answer, consisting of a general demurrer, a special exception, and a general denial; and, in addition, filed a cross-bill against Atkinson and wife, alleging a balance due them on the contract, and for extras agreed upon; and further prayed for $1,500 damages, alleged to be due them because of the interference by Atkinson and wife in the prosecution of the contract. Jackson Bros. alleged a materialman's mechanic's and laborer's lien to exist in their favor against the premises and residence by reason of the Constitution and the statutes in such cases made and provided, and sought a foreclosure of such lien upon the premises described in the contract and the residence constructed thereon by them. They also alleged the same facts as plaintiff, seeking thereby to fix liability upon Mary E. Atkinson for their debt.

Defendants Atkinson and wife filed an answer to plaintiff's petition, consisting of sworn pleas in abatement of misjoinder of parties and causes of action, a general demurrer, special exceptions, a general denial, plea of the statutes of fraud, a sworn denial of the claim, a plea of homestead, a plea of want of consideration for the alleged promise to pay the account of Jackson Bros., and a denial of any indebtedness to Jackson Bros. They also filed an answer to the cross-bill of Jackson Bros., consisting of the same pleas in abatement and exceptions as urged to plaintiff's petition, and, in addition, denied under oath the existence of any lien in favor of Jackson Bros., denied any liability for extras, pleaded payment of various items in addition to those pleaded by Jackson Bros., and by way of cross-bill against Jackson Bros. prayed for damages for various defects in workmanship and material in the construction of the building, and for damages for failure to construct the building in accordance with the plans and specifications and addenda thereto.

Certain others who sought to establish laborers' liens upon the property intervened in the suit; but, since no one in this case is complaining of any judgment rendered as to them, wo do not deem it necessary to set forth their pleading.

The court overruled all pleas in abatement and general and special demurrers before announcement on the merits, and the party or parties presenting same duly excepted. The case was tried to a jury, and, upon their answers to special issues submitted, the court rendered judgment in favor of plaintiff, Leeper-Curd Lumber Company, against Jackson Bros., jointly and severally, for $1,110.20, with interest and costs of suit, but denied a recovery to plaintiff against J. B. Atkinson or his wife, Mary E. Atkinson. The court also rendered judgment in favor of the defendants Jackson Bros. against the defendant J. B. Atkinson for $1,466.90 (being the balance which the jury found to be due Jackson Bros. on the contract, with interest thereon from the date of the acceptance of the building by Atkinson and wife), with interest on the judgment from the date thereof, but denied them a judgment against Mary E. Atkinson. A lien was denied all parties pleading such on the premises or residence constructed thereon under the contract. All issues of damages pleaded by way of cross-actions by the various parties to the suit were decided adversely to the party pleading same by the jury and court, and judgment was so entered.

Plaintiff filed a motion for new trial and to reform the judgment, which was overruled, an exception taken to the action of the court thereon, notice of appeal given, and plaintiff has duly perfected an appeal to this court.

Jackson Bros. filed a motion for a new trial and to reform the judgment, which was overruled by the court, an exception taken, notice of appeal given, and they have duly perfected an appeal.

J. B. Atkinson filed a motion for new trial, which was overruled; to which action of the court he excepted, gave notice of appeal, and has duly perfected an appeal to this court.

Findings of Fact.

The uncontroverted facts show that Jackson Bros., contractors, by a written contract with J. B. Atkinson, agreed to furnish necessary labor and material to construct a residence on a lot in Coleman, owned by Mary E. Atkinson, wife of J. B. Atkinson, for a consideration of $7,582.50. Certain extras were agreed upon between the parties, for which the jury found Jackson Bros. entitled to recover $573. Plaintiff, Leeper-Curd Company, furnished the contractor the items of lumber and material sued for herein with which to construct the residence. It was agreed between Jackson Bros. and plaintiff that Atkinson would pay direct to plaintiff such amounts as became due on the contract as the work progressed, and Atkinson did pay $1,600 on said account, leaving a balance of $1,045.75 due, as shown by plaintiff's petition. Atkinson owed Jackson Bros., at the time of the suit, a balance of $1,394.84 on the contract. Plaintiff did not comply with the prerequisites of articles 5623, 5635, and 5637, relative to establishing a materialman's lien on the premises or residence constructed by Jackson Bros. under the contract with Atkinson, and no lien existed in its favor. The premises and the building constructed thereon was the homestead of J. B. Atkinson and his wife, Mary E. Atkinson, at the time of the execution of the contract with Jackson Bros., and no lien existed in their favor on the premises; no effort having been made to comply with the law relative to fixing a lien on the homestead for improvements thereon.

Opinion.

All parties having perfected an appeal, their assignments of error so overlap that we will discuss the questions raised without direct reference thereto.

The first question presented is: Was there a misjoinder of parties to the suit? Appellant J. B. Atkinson's pleas in abatement because of the alleged misjoinder of parties were overruled before announcing on the merits, and again after the verdict of the jury had been returned. In this we think the court was correct. Plaintiff sought to hold appellant J. B. Atkinson upon two grounds — first, it was alleged that J. B. Atkinson contracted to pay direct to plaintiff such amounts as would be due Jackson Bros. under the contract as it progressed, and further alleged that Jackson Bros. had completed the contract and that J. B. Atkinson still owed on the contract more than enough to pay Jackson Bros.' account to plaintiff; second, plaintiff sought to establish a lien upon the premises and the building constructed thereon by reason of having furnished the lumber and material to the original contractor, alleging a compliance with the statutes relative to fixing a materialman's lien. Under plaintiff's pleadings, if it established them by proof, appellants, J. B. Atkinson and his wife, were necessary parties to the suit.

On the first ground alleged, it became a matter of proof whether or not J. B. Atkinson made the contract to pay plaintiff such amounts as would become due Jackson Bros. as the work on the building progressed; and by reason of such plea J. B. Atkinson could be held to a final determination of the issue, unless such contract is, as alleged by appellants, in violation of the statutes of fraud. We do not think it violative of the statutes of fraud, as it did not require Atkinson to...