De Bruin v. Santo Domingo Land & Irrigation Co.

• Decision Date: 11 April 1917
• Docket Number: (No. 5830.)
• Citation: 194 S.W. 654
• Parties: DE BRUIN et al. v. SANTO DOMINGO LAND & IRRIGATION CO. et al.
• Court: Texas Court of Appeals

Page 654

194 S.W. 654

DE BRUIN et al. v. SANTO DOMINGO LAND & IRRIGATION CO. et al.

(No. 5830.)

Court of Civil Appeals of Texas. San Antonio.

April 11, 1917.

Rehearing Denied May 9, 1917.

Appeal from District Court, Cameron County; W. B. Hopkins, Judge.

Suit by J. C. De Bruin and others against the Santo Domingo Land & Irrigation Company and others. From a judgment adjusting the rights of various parties, J. C. De Bruin and A. M. Lockett & Co. appeal. Affirmed.

Frank C. Pierce, Webster & Green, and F. W. Seabury, all of Brownsville, for appellants. Graham, Jones & George, of Brownsville, and J. R. Monroe, of Rio Grande City, for appellees.

FLY, C. J.

This suit was instituted by J. C. De Bruin against the Santo Domingo Land & Irrigation Company, the Bankers' Trust Company, J. G. Fernandez, W. L. Harding, A. M. Lockett & Company, Limited, and John T. Devine. The last-named died, and his widow was made a party. She was the sole heir of John T. Devine, and executrix of his last will and testament. The suit began in Starr county, but, by agreement, was changed to Cameron county. The suit was based upon two contracts between De Bruin and the irrigation company, one being a contract for the construction for the company of a portion of its pumping plant and system of irrigation for 1,200 acres of land belonging to the company, and he claimed for the contract $9,096 and $2,442.81 for extra work and material; the aggregate being $11,538.81, which, less a credit of $8,472.60, left a balance of $3,066.21, of which a recovery was sought on that contract. The other contract was a supplement to the first, and released De Bruin from the work already done, and obligated the company to complete the work, using the tools and outfit, and he claimed that the company appropriated his tools and outfit, and that he was entitled to their value, in the sum of $1,459.45, and also $500 for profits. He asserted a contractor's lien on the company's pumping plant and irrigation system, and prayed for a foreclosure of the same. John G. Fernandez and Mrs. Devine claimed to own $37,500 each of the bonds of the irrigation company, secured by a deed of trust of date September 3, 1912, upon all the properties of the company, in which the Bankers' Trust Company, also made a defendant, was the trustee. A. M. Lockett & Co. claimed a lien on the properties of the company, dated July 20, 1912, for an amount due on the sale and installation of pumping machinery and other matters. W. L. Harding claimed a subcontractor's lien on the property. Fernandez and Mrs. Devine also claimed to own the property of the irrigation company by virtue of a purchase under the execution of the trust deed by the trustee. They claimed that they had purchased the bonds of the company for value and without notice of any liens, and also claimed subrogation under the liens by reason of the money paid by them for the bonds having been paid to the contractors. The irrigation company admitted the justice of the claims of Fernandez and Devine, and also admitted the debt of Lockett & Co., but denied the existence of a lien to secure the same, and also denied the claims of De Bruin, and filed a counterclaim against him for damages for delay in performing his contract.

The cause was tried without a jury, and judgment rendered in favor of De Bruin for $1,459.45, for the value of his tools and outfit, in favor of A. M. Lockett & Co. for $7,522.81, against the irrigation company, foreclosure of liens being denied, in favor of the company as against Harding; a dismissal being entered as to the Bankers' Trust Company, relief being denied the company on its cross-action against De Bruin, and Fernandez and Mrs. Devine were quieted in their title to the property. This appeal was perfected by De Bruin and A. M. Lockett & Co.

The first assignment of error of De Bruin assails the action of the court in refusing to give the additional findings of fact requested by appellants. The complaint is that appellants requested the court, on June 27, 1916, to file his conclusions of fact and law; that the court adjourned on June 30, and that the conclusions were not filed until July 10, 1916, the last day on which they could be filed, and thereafter, when an application for additional findings was presented, the trial judge refused to find further facts. The law is plain and unequivocal that only 10 days after adjournment of the court shall be allowed in which to file findings of fact and conclusions of law. Vernon's Sayles' Stats. art. 2075. The court complied with that law fully in filing the conclusions of fact and law. The court had no authority after the expiration of the 10 days to file additional findings of fact, any more than he would have had authority to file all of the findings of fact after the statutory time. State v. Pease, 147 S. W. 649. There is a statement of facts in the record, and appellants could attack the findings of fact under their exception to the judgment below. Voight v. Mackee, 71 Tex. 78, 8 S. W. 623; Bond v. Garrison, 59 Tex. Civ. App. 620, 127 S. W. 839; Walsh v. M. E. Church, 173 S. W. 241. The findings of fact cannot be disregarded because the trial judge refused the additional findings of fact out of time.

The second assignment of error of De Bruin complains of certain evidence of D. D. Jones as to what crops the irrigation company would have raised, if De Bruin had not delayed in doing the work for which he had contracted. If the evidence was improperly admitted, it could not have injured De Bruin, for the reason that the company did not recover on its cross-action, and the evidence bore on the cross-action alone. The assignment is overruled. The court found that the company had fully paid appellant, De Bruin, for all work done by him, and the further finding that the damages of the company were as great as any sum owing to De Bruin was unnecessary, and did not affect the positive finding that he had been paid in full. Nothing was allowed as damages to the company, but it was decreed that it was not entitled to damages. The judgment totally fails to disclose any offset of damages against De Bruin's claim, and the second, third, fourth, and fifth assignments of error are overruled.

The sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteenth assignments of error are overruled. The circumstances were sufficient to justify the court in finding that Fernandez and Devine bought the bonds for value, without notice of any liens held by the appellees. The mortgages or liens were not on record, and the testimony fails to indicate that there was actual notice of them. The fact that De Bruin was working on the land was not known to Fernandez at the time he bought the bonds for the bank; in fact, they were bought before De Bruin's contract was made. If the bank had knowledge of the existence of any liens, it must have been obtained through Fernandez, and he swore that he had no such knowledge of the liens of appellants when he bought the bonds. The evidence failed to show that any one connected with the bank knew of the existence of the liens, and therefore Fernandez could not have been charged with knowledge through the bank. There was no recital in the bonds that any liens existed on the property, but merely that the bonds were issued to obtain money to repay a loan contracted to erect an irrigation plant. There was nothing in the recitals giving notice that the contractors had liens on the property. Fernandez denied any conversation with Lockett before the loan was made to the irrigation company, and the trial judge exercised his undoubted prerogative of believing Fernandez in preference to Lockett.

The state Constitution (article 16, § 37) gives a lien to mechanics, artisans, and materialmen, of every class, upon the buildings and articles made or repaired by them, for the value of their labor done thereon, or material furnished therefor, and instructs the Legislature to "provide by law for the speedy and efficient enforcement of said liens." In compliance with that constitutional requirement the Legislature passed the act embodied in chapter...