C. B. Carter Lumber Co. v. Simpson

• Decision Date: 16 February 1892
• Parties: C. B. CARTER LUMBER CO. v. SIMPSON <I>et al.</I>
• Court: Texas Supreme Court

18 S.W. 812

C. B. CARTER LUMBER CO. v. SIMPSON et al.

Supreme Court of Texas.

February 16, 1892.

Commissioners' decision. Section B. Appeal from district court, Dallas county.

Action by the C. B. Carter Lumber Company against James B. Simpson, A. C. Ardrey, C. L. Bessonette, and C. H. Huffman to foreclose a mechanic's lien. The case was dismissed as to Simpson and

Huffman upon exceptions to the petition. Plaintiff appeals. Reversed.

Brown, Hall & Freeman, for appellant. C. A. Culberson, for appellees.

TARLTON, J.

The following substantially accurate statement of this case is taken from appellees' brief, supplemented by other extracts from record which we think proper: The appellant, on March 4, 1889, filed suit in the district court of Dallas county against C. L. Bessonette, A. C. Ardrey, James B. Simpson, and C. H. Huffman, stating substantially that the three last named entered into a contract with Bessonette to construct a brick building in the city of Dallas, on a lot of ground described as on "the west side of Elm street, in the said city of Dallas, beginning at the S. W. corner of the lot upon which is situated the Fourth National Bank; thence in a northerly direction, at right angles with Elm street, (about 14 W.,) 200 feet to Pacific avenue; thence westerly, along the S. line of Pacific avenue, 62½ feet; thence southerly, perpendicular to Pacific avenue, 200 feet to Elm street; thence eastwardly, along the N. line of Elm street, 62½ feet to the place of beginning." That appellant furnished Bessonette lumber to build said house for the defendants Simpson, Ardrey, and Huffman, said lumber of value aggregating $2,038.08, shown by an exhibit, none of which had been paid except $335.32, by Bessonette. That appellant has a lien on the lot described and the building thereon. That Ardrey, Simpson, and Huffman were notified in writing 10 days before August 20, 1888, that appellant held such lien. That afterwards, on August 20, 1888, appellant filed in the county clerk's office of Dallas county a sworn account of the demand due, and prayed for foreclosure of the mechanic's lien against the entire property. The account filed with the clerk, which was made an exhibit to the petition, was made out against "C. L. Bessonette, for Simpson and Huffman and Ardrey building;" and the affidavit attached to the account, made by the president of the company, stated that the lumber was furnished Bessonette to erect a house "for James B. Simpson and C. H. Huffman and A. C. Ardrey," upon the identical lot of ground described in the petition. On the 11th of March, 1889, Simpson and Huffman, who owned their interest as partners, filed their original answer, in which they pleaded in abatement to the suit upon the ground, which was verified, that there was a misjoinder of defendants, for that they "and A. C. Ardrey are improperly joined as defendants, because the defendants Simpson and Huffman and Ardrey do not own, and did not own at the date of the alleged contract sued on, any part of the land described in plaintiff's petition in common or jointly; that defendants Simpson and Huffman and Ardrey do not own, and did not own at the date of the alleged contract sued on, any part of the building erected on the land described in the plaintiff's petition in common or jointly; that said defendants at the date of the alleged contract owned, and now own, and continuously since then have owned, separate, distinct, and well-defined portions of said land and the buildings, respectively, erected on said distinct portions of said land, and without any joint, common, or mingled interest in either land or buildings of any kind; and that defendants Simpson and Huffman together, and defendant Ardrey alone, had separate and distinct written contracts with defendant Bessonette for the erection of their respective buildings on the land owned separately by them as aforesaid." On the 13th of March, 1889, the defendant Ardrey filed a similar plea in abatement. On March 15, 1889, Messrs. Thompson & Clint filed a general demurrer and answer for the four defendants, but they represented Bessonette only, and this answer for the others was inadvertently filed. Simpson and Huffman and Ardrey were represented by different counsel, and filed separate pleadings.

The appellant filed its first supplemental petition on January 9, 1891, in which it was insisted substantially that the appellees and Ardrey should not be heard on their pleas in abatement; that the house built on the lot described was built at the same time, by the same man, under a joint contract with all the joint owners; that the contract for the brick-work was entered into by said three parties with one Sanderson; that the walls, flooring, roof, ceiling, joists, doors, and windows were all of the same kind of material and finish as to size, weight, thickness, and appearance, and were all built together by the same contractor, upon the same estimates; that the plans and specifications were made for one house, and that the completed structure is but one house, on one continuous lot of ground, having but one foundation, four outer walls, one floor, one roof, and one stairway; that appellant furnished the material to Bessonette, relying upon the agreement between Ardrey, Simpson, and Huffman with Bessonette that they would together erect but one house; that by the specifications and contract with Bessonette, and by the assurance of Bessonette, the contractor, it was fully advised of the fact that said Ardrey and Simpson and Huffman had agreed among themselves that together they would erect only one house; that the defendants Ardrey, Simpson, and Huffman agreed to build but one house, and to treat the lot as joint property, so far as concerned the construction of the house, for the purpose of saving the cost of construction, amounting to one-fourth less than the cost would otherwise have been; that the defendants reserved from Bessonette 15 per cent. of the contract price, to indemnify themselves against privileged claims; that for these reasons appellees were estopped from asserting that their interest was several; that of the lumber furnished by appellant 67,873 feet were used in that part of the building claimed by Simpson and Huffman, and 21,851 feet were used in that part claimed by Ardrey, and the relative amount due from Simpson and Huffman was $1,289.59, and the sum due from Ardrey was $415.12. It prayed judgment against the defendants jointly or against them separately, as to the court might appear just and proper.

Appellant, on January 9, 1891, also filed what is termed "plaintiff's amended supplemental petition," its purpose being stated as "amending and correcting its first supplemental petition filed herein." This amendment declared that the appellant had compromised with the vendee of Ardrey, and disclaimed all right, title, or interest in that portion of the lot and building claimed by Ardrey, and had relinquished its said lien on said lot and building; and that appellant now only seeks to foreclose its lien "on...