Clark v. Gillespie

• Court: Texas Supreme Court
• Writing for the Court: Walker
• Citation: Clark v. Gillespie, 8 S.W. 121, 70 Tex. 513 (Tex. 1888)
• Decision Date: 20 April 1888
• Parties: CLARK <I>et al.</I> v. GILLESPIE <I>et al.</I>

8 S.W. 121

CLARK et al. v. GILLESPIE et al.

Supreme Court of Texas.

April 20, 1888.

Appeal from district court, Tarrant county; R. E. BECKHAM, Judge.

Suit by Clark & Clark against A. Brownlee, Smith & Jarvis, W. F. Lake, G. W. Gillespie, and C. H. Rintleman, claiming a right to funds in the hands of Smith & Jarvis on which Gillespie claimed a lien. Brownlee had erected a building for Smith & Jarvis, and assigned money owing him from them to plaintiffs before Gillespie's lien was established. Judgment for defendants. Plaintiffs appeal.

Ball & McCart, for appellants. Hunter & Stewart, for appellees.

WALKER, J.

This is a contest between material-men over a balance in the hands of Smith & Jarvis, for whom one Brownlee built a house. Gillespie brought suit, January 29, 1885, to subject the balance to his debt alleged to have been established December 17, 1884, against the funds remaining in the hands of the owners of the house. March 9, Clark & Clark, who held an account for materials, etc., brought suit against Smith & Jarvis, and against Brownlee principal, and Lake, Rintleman, and Gillespie sureties, on a bond to Smith & Jarvis, with conditions protecting them in the fulfillment of the building contract, and for repayment of all money they might pay on account of labor done or materials furnished, and which the contractor might fail to pay, etc. Clark & Clark asked a decree postponing Gillespie to their claim. The two suits were consolidated. The findings of facts by the court are as follows, (it appeared in the pleadings that the house had been completed according to contract:) First, that the contract and bond mentioned in petition of Clark & Clark, was executed as alleged by the parties as alleged. Second, that, on or about the 1st of December, the defendant A. Brownlee requested the defendants Smith & Jarvis to pay to Clark & Clark the sum of $1,010, being amount then owing by said Brownlee to said Clark & Clark for material furnished said Brownlee, and used in construction of the buildings of defendants Smith & Jarvis, and that at that time said Smith & Jarvis had in their hands the sum of $5,000 of the sum to be paid by them under their contract with said Brownlee; that, at the time, there was owing by said Brownlee, on account of said buildings, more than the sum in the hands of Smith & Jarvis; that said Brownlee verbally transferred to said Clark & Clark that amount of the sum owing by Smith & Jarvis, and instructed said Clark & Clark to draw upon said Smith & Jarvis for the sum; that on the 16th of December, 1884, said Clark & Clark drew upon said Smith & Jarvis for said sum, and their draft was presented to Smith & Jarvis on the 17th of December, 1884, before the plaintiff Gillespie had served Smith & Jarvis with notice of his account verified under the statute,...