Barber v. Herring

• Decision Date: 16 March 1921
• Docket Number: (No. 207-3298.)
• Citation: 229 S.W. 472
• Parties: BARBER et al. v. HERRING.
• Court: Texas Supreme Court

229 S.W. 472

BARBER et al. v. HERRING.

(No. 207-3298.)

Commission of Appeals of Texas, Section B.

March 16, 1921.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Suit by W. E. Herring, guardian, against A. C. Barber and others. From a judgment of the Court of Civil Appeals (203 S. W. 142), reversing a judgment for defendants, the latter bring error. Judgment of Court of Civil Appeals reversed, and that of district court affirmed.

A. J. Clendenen, Ike A. Wynn, and S. C. Padelford, all of Fort Worth, for plaintiffs in error.

E. H. Rotcliff and A. W. Christian, both of Fort Worth, for defendant in error.

KITTRELL, J.

This case is reported in 203 S. W. 142. Before calling attention to certain fundamental principles, which appear to us to be controlling, it is logically in order to inquire what the situation of the parties to the contract of June 29, 1910, was.

Herring and wife on that day owned property on which they desired to build a home, but they were not financially able to do so. J. Thomas Franklin, a contractor to whom they applied to build the home, was not able to furnish the material and execute the contract without assistance, and he went to a firm designated for convenience hereinafter as the "Barber Company," which firm was engaged in the lumber and building material business, and which was able to furnish the material and money necessary to execute the contract. Not a dollar's worth of material or a dollar in money was furnished until the contract had been made. These facts are undisputed. The trial court believed A. C. Barber, the only witness who testified, and the Court of Appeals in no respect questioned the truth of his statements, but puts its holding on strictly legal grounds, deciding the case on a question of law.

It is clear that the "Barber Company" said they could and would furnish the material and money to build the house according to the plans and specifications submitted, for $2,249, provided they received two notes, for $600 each, due three years after date, bearing interest at 10 per cent., said notes to be a first and superior lien to that created by 25 notes, for $40 each, and one note, for $49, making a total of $1,049, said 26 notes being payable monthly to Franklin.

Such arrangements having been made, and Franklin being thereby assured of his ability to carry out the contract, he entered into a formal builder's and mechanic's lien contract with Herring and wife by Franklin, the contract to be completed on or before September 1, 1910, and Franklin was to furnish all material and labor and to construct and deliver the building at his sole expense.

In order to make clear what the contract was as to time and terms of payment, and the lien fixed, we quote in full the paragraph of the contract relating thereto:

"And the said improvements shall be delivered as aforesaid by said contractor on or before said date, free and clear of any and all liens and incumbrances for or on account of any labor or material furnished for same, except as hereinafter provided, to wit: Two promissory notes for the sum of $600 each, with interest at 10 per cent. per annum, of even date herewith, and due three years after date, which said notes shall be a first lien on said property; and 25 notes, due in monthly installments of $40 each, beginning August 1st, 1910, and one note for $49, payable one month after the last of the above 25 notes, all bearing interest from maturity at the rate of 10 per cent. interest per annum, and providing that the failure to pay any one of such installments shall mature each and all of said notes."

The contract then proceeds:

"And in consideration of the undertaking and faithful performance by the said contractor of his part of this contract the said George M. Herring and wife hereby agree and bind themselves, their heirs and assigns, to pay to the said contractor, his heirs and assigns, the full sum of two thousand two hundred and forty-nine dollars ($2,249), to be paid as follows, to wit: $1,200 cash; the balance in 26 monthly installments, beginning August 1, 1910, 25 of said installments being evidenced by promissory notes for the sum of $40 each, and one for the sum of $49, executed by the said George M. Herring, payable to the said J. Thomas Franklin, with interest from maturity at the rate of 10 per cent. per annum; and it is agreed that said notes shall be a second lien on said property, subject to a lien of $1,200 in favor of Barber Lumber & Mill Company."

One paragraph of said contract, immediately following the one in which the Barber Company is given the first lien, reads as follows:

"And should said George M. Herring and wife fail to pay said sum of $1,049, or any part thereof when due, then the same shall bear interest at the rate of 10 per cent. per annum from the date when due until paid, and should suit be brought thereon by said contractor, his heirs, representatives, or assigns, for any amount so due, the further sum of ten per cent. upon such amount as may be due shall be added as attorney's fees, and to secure the said contractor, his heirs or assigns, in the punctual payment of said sum, and each and every part thereof, a valid statutory lien is herein and hereby granted upon it and singular said real estate and improvements."

The contract was executed in constitutional and statutory form and the notes were executed, the same day, June 29, 1910. Franklin by instrument of same date in writing, transferred and assigned said 26 notes, together with the mechanic's lien to Barber Lumber & Mill Company. It is perhaps proper to say that the contract provided that the contract should not be assigned or sublet without the consent of Herring.

On the same day, June 29, 1910, Herring and wife executed to one I. W. Jarrell, as trustee, a deed of trust to secure the two $600 notes, in which instrument it was provided that said notes should be a prior and superior lien upon said property, and the following described notes to be second and subsequent thereto, and the 41 notes payable to Franklin above referred to and described are then specifically described. The house was built and turned over to the Herrings on September 15, and they accepted it in writing, saying in writing addressed to Barber Lumber & Mill Company:

"Mr. Franklin has completed his contract on my job to the perfect satisfaction of myself.

                    "Yours truly,         Geo. M. Herring."
                

It is undisputed that the "Barber Company" not only furnished all the material, but paid the pay rolls every Saturday night and in every way kept their parol agreement with Franklin. The Herrings both died after paying all the 26 notes, and, the two $600 notes being unpaid, the guardian of the minor children brought the action, out of which this appeal arose, to cancel the lien created by the deed of trust.

The Barber Company answered, setting up the rights which it conceived it had under the contract above set forth, and prayed for a foreclosure of the lien. The prayer was granted. The guardian appealed, and the Court of Civil Appeals reversed and rendered the judgment, holding that the Barber Company had no lien.

That careful examination of the opinion of the Court of Civil Appeals which both our duty and our respect for that court demand leads to the conclusion that that court overlooked a principle of law which seems to us peculiarly applicable to the situation presented by the record, viz.: Where several instruments are made part of one transaction, they will be read together, and each will be construed with reference to the other. Thus, where two or more written instruments are executed on the same day, relate to the same subject-matter, and one refers to the other, the presumption is that they evidence but a single contract. 9 Cyc. pp. 580, 581. The language used in 6 Ruling Case Law, p. 580, par. 240, is to the same effect:

"Moreover, the general rule is that, in the absence of anything to indicate a contrary intention, instruments executed at the same time, by the same parties, for the same purpose, and in course of the same transaction, are in the eye of the law one instrument, and will be read and construed together, as if they were as much one in form as they are in substance."

The opening words of the same paragraph (240) are obviously applicable to the question in hand:

"When different instruments are executed at the same time, but are all parts of one transaction, it is the duty of the court to suppose such a priority in the execution of them as shall best effect the intention of the parties."

The law has been so declared in Texas in Dunlap v. Wright, 11 Tex. 597, 62 Am. Dec. 506...