Campbell v. Teeple

• Decision Date: 06 May 1925
• Docket Number: (No. 7361.)
• Parties: CAMPBELL v. TEEPLE et al.
• Court: Texas Court of Appeals

273 S.W. 304

CAMPBELL v. TEEPLE et al.

(No. 7361.)

Court of Civil Appeals of Texas. San Antonio.

May 6, 1925.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Suit by the Ranger Hardware Company against J. W. Teeple and others, in which W. M. Campbell intervened. From a judgment for intervener against defendant named only, and for defendants Simon, Sanger & Marx, intervener appeals. Affirmed.

Preston Martin, of Weatherford, and Goree, Odell & Allen, of Fort Worth, for appellant.

Slay, Simon & Smith and Hugh B. Smith, all of Fort Worth, for appellees.

COBBS, J.

Simon, Sanger & Marx owned certain business lots in Ranger, Tex., upon which they caused to be erected a structure to be known as the Majestic Building. Certain material and fixtures were used in the building furnished by Ranger Hardware Company, to whose rights appellant succeeded. The principal items furnished by the Ranger Hardware Company were 30 fans, on August 7, 1920, of the aggregate value of $1,026.64. The rest of the account amounted to $101.72, made up of miscellaneous items of material. The Ranger Hardware Company filed its verified itemized account in the county clerk's office to fix a materialman's lien on the property.

Simon, Sanger & Marx entered into a written contract with J. W. Teeple and R. S. Wilkie for the erection of the building in accordance with certain plans and specifications, which did not expressly call for the construction of or putting any fans therein. The contract contains a provision for leasing the property when completed to John Maniatis and P. L. Bible for rental purposes, which lease contract contained a provision providing, as in the building contract itself, for the construction of the building for the price of $65,000, and $10,000 to be retained by the owners for the faithful performance of the lease contract, and providing that all furniture and fixtures placed into said building shall be paid for so that no lien or incumbrance shall be upon the same for more than 50 per cent. of its cost.

J. W. Teeple succeeded to all the rights of the lessees under the prior contract prior to the completion of the building, and undertook the construction of the building, and installed the fixtures mentioned which were not covered by the contract.

Teeple was unable to complete the building under his contract, and the building was completed by the owners; Teeple remaining on the job in their employ. During the course of construction the building was equipped as a theater, and as a part of the equipment the fans in question were installed for use. After completion, the theater building was operated for a time by Teeple as lessee. Teeple was not able to carry out the lease contract for its full term, and the building and the fixtures were taken over by Simon, Sanger & Marx.

Payment for the fans and material used in the building being refused, suit was brought therefor in the district court of Eastland county, Tex., on April 30, 1921, in which suit Teeple and Simon, Sanger & Marx were made parties defendant, and a personal judgment was sought against said defendants as well as a foreclosure of the materialman's lien. In this suit the appellant, Campbell, intervened on July 1, 1921, and set up his ownership of the cause of action, and likewise sought personal judgment against the defendants and a foreclosure of the lien. It was averred also that the defendants Simon, Sanger & Marx had converted to their own use the items furnished by the Ranger Hardware Company, and personal judgment on this additional ground was sought against said three defendants. In addition to the pleading referred to a trial amendment was filed in which the constitutional lien was also pleaded.

The defendant Teeple made no appearance, but the defendants Simon, Sanger & Marx pleaded certain exceptions, a general denial, a denial of partnership, and specially pleaded that the items which formed the basis of the suit, if furnished, were furnished to Teeple and Wilkie as independent contractors, and that the said contractors were fully paid by Simon, Sanger & Marx prior to receiving notice of the claim in controversy. No claim of any landlord's lien or other right was pleaded by said defendants.

The case was transferred to the District Court of Tarrant county, Tex., where it was tried before the court without a jury on January 15, 1924, which trial resulted in a judgment in favor of the intervener against J. W. Teeple for the amount of the debt and a judgment in favor of the defendants, Simon, Sanger & Marx. A foreclosure of the materialman's lien was also denied.

No findings of fact or conclusions of law were requested or filed by the court. The first, second, and eighth propositions are to the effect that the court erred in not allowing a foreclosure of the alleged materialman's lien for $101.72. And the third, fourth, fifth, sixth, and seventh propositions are to the same effect that the court erred in not giving judgment foreclosing the lien for $1,026.64, the cost of the fans.

We will discuss all these propositions together. Really, these assignments are subject to the very vigorous assault made on them by appellees. While this court, whenever it can consistently do so, overlooks a failure to brief cases exactly as the rules seem to indicate, and when an error is shown to have been made by the trial court, and the record shows an objection made to such ruling preserved and pointed out by an assignment in the brief, it will likely be considered, for we have no higher function here or desire other than to see that a case has been fairly tried and justice administered. In fact, at most, here the propositions amount to a complaint, in effect, that the court rendered the wrong judgment, which should have been for intervener against appellees.

As the trial court was not called upon to file any findings of fact or conclusions of law, we will say at the very outset that every presumption not inconsistent with the record will be indulged in favor of the judgment, and any doubts as to the facts raised by the evidence and any view of the law which the trial court could have applied under the pleadings and evidence in the case will be resolved in support of the judgment. This law is well settled.

There is evidence to support the judgment that before any claim was made or notice given thereon that the building had been completed or turned over for completion by the owners, and that at such time the owners owed nothing to the contractor Teeple, who was also the tenant. Really, the law is too well settled to need citation of authorities that a materialman can only reach the owner or his property by virtue of an indebtedness on his part to the original contractor at the time. The evidence shows, as we must assume, for it was so found by the court, that, when the affidavit was filed, the owners were not indebted in any sum to the contractors; the contractors being indebted to the owners. If the contract price had not been paid out to the contractors, still it was shown that it required more money than the unpaid portion of the contract price to complete the building, and in no event, therefore, could a lien be acquired by appellant upon the property in question.

As to the item of $1,026.64 for the fans, for which appellant claims a lien, so far as any claim under the contract that the fans were embraced therein, it must be assumed that the court found both as a matter of fact and law that these fans were not called for in the plans and specifications or in the contract, neither by specific language nor by any inference.

Teeple himself had an interest in the lease contract that he...