Brown v. Majors

• Decision Date: 26 September 1952
• Docket Number: No. 14535,14535
• Citation: 251 S.W.2d 786
• Parties: BROWN et ux. v. MAJORS et al.
• Court: Texas Court of Appeals

Page 786

251 S.W.2d 786

BROWN et ux. v. MAJORS et al.

No. 14535.

Court of Civil Appeals of Texas, Dallas.

Sept. 26, 1952.

Moses & Truett, McKinney, for appellants.

Roland Boyd, McKinney, and Murray H. Nance, Jr., Sherman, for appellees.

CRAMER, Justice.

Appellants J. J. Brown and wife, as owners, and E. L. Browning, as contractor, on January 18, 1950 executed a mechanic's lien contract wherein the contractor agreed to furnish all labor and material necessary to erect certain improvements covered by such building contract for a consideration of $13,000. The contractor made various subcontracts in connection with the work, one being with appellee Majors for the painting work, the price of which was to be $637.50. The owners on May 3, 1950 had paid the contractor $9,750 on the $13,000 consideration, and the contractor had paid Majors $75 on his subcontract. On that day, May 3, 1950, the contractor abandoned the job. It cost the owners more than the $3,250 balance of the contract price to complete the job and the owners refused to pay Majors the amount due for work performed before the contractor abandoned the job, but they did pay for the work done at their instance after the abandonment of the job. Majors timely filed an affidavit for mechanic's lien under provisions of arts. 5452 to 5472c, R.C.S., Vernon's Ann.Civ.St. arts. 5452 to 5472c.

Because of the owners' refusal to pay him, Majors filed this suit against the owners for $427.50 for labor and materials furnished by him before the contractor abandoned his contract, and foreclosure of his asserted lien on the property originally covered by the mechanic's lien, alleging the property was not a homestead of the owners.

In amended pleadings he added that the owners had induced the contractor to abandon his contract in consideration of the owner's assumption and promise to pay the subcontractors, especially appellee Majors.

After the trial court overruled the owners' pleas in abatement and to the jurisdiction and numerous exceptions, trial to the jury resulted in findings in substance as follows: (1) Appellee gave appellants statutory notice of his claim; (2) on June 2, 1950; (3) appellants had paid the contractor $9,750 before the notice was served on him; (4) and said $9,750 was paid before May 3, 1950; (5) that appellants and the contractor, on May 3, 1950, agreed that if appellants would release the contractor 'from the further performance of said contract with reference to building said tourist court,' that the contractor would release appellants from any and all further payments due under said contract; (6) appellants did not pay the contractor any further sum of money on the building contract after May 3, 1950; (7) on May 3, 1950 the contractor, the appellants, and the appellee met in the office of appellants' attorney and it was there agreed by appellants and the contractor that they would assume and pay to appellee any sum due appellee by the contractor, provided the contractor would sign a written statement to abandon the written contract with appellants; (8) and the contractor did on that occasion sign the statement abandoning the building contract and did so abandon such contract; (9) that such agreement by appellants to pay appellee the debt due him by the contractor induced the contractor to sign the statement to abandon the building contract; (10) that appellee acquiesced in and assented to such agreement; (11) the amount due Majors at the time was $427.50; (12) that $3,500.81 was the necessary amount expended by the owners for completion of the building contract after the abandonment of the contract; and (13) the building contract covered the business and residential homestead of appellants.

On the verdict, the court rendered and entered judgment for Majors and against the owners for the sum of $427.50, denied recovery of an attorney's fee and for foreclosure of the asserted lien. The court also denied the owners a recovery against the building contractor.

From that judgment this appeal has been duly perfected, and appellants have briefed ten points of error.

Point 1 complains of the trial court's overruling their plea to the jurisdiction. Material to this plea, it appears that the amount involved was below the jurisdiction of the district court unless the district court had jurisdiction by reason of the claimed foreclosure of a lien on real estate. The original petition, filed July 13, 1950, after describing the real estate sets out the facts hereinabove recited and that the owner...