Clem Lumber Co. v. Elliott Lumber Co.

• Decision Date: 10 October 1923
• Docket Number: (No. 452-3839.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: Clem Lumber Co. v. Elliott Lumber Co., 254 S.W. 935 (Tex. 1923)
• Parties: CLEM LUMBER CO. v. ELLIOTT LUMBER CO. et al.
• Court: Texas Supreme Court

254 S.W. 935

CLEM LUMBER CO. v. ELLIOTT LUMBER CO. et al.

(No. 452-3839.)^*

Commission of Appeals of Texas, Section A.

October 10, 1923.

Error to Court of Civil Appeals of Second Supreme Judicial District.

Action by the Elliott Lumber Company against G. B. Mitchell, in which the Clem Lumber Company intervened and Mrs. L. E. Mitchell joined in the defense. From a money judgment for plaintiff, but denying foreclosure of its materialmen's lien, and against plaintiff in favor of intervener, plaintiff appealed to the Civil Court of Appeals which reversed in part (241 S. W. 221), and defendant and intervener bring error. Affirmed in part and reversed in part.

Sayles & Sayles, of Abilene, and J. R. Stubblefield and Chas. C. Robey, both of Eastland, for plaintiffs in error.

Scott, Brelsford, Funderburk & Ferrell, of Eastland, for defendant in error.

GALLAGHER, P. J.

This suit was instituted in the district court of Eastland county, and the parties will be designated as in that court. Plaintiff Elliott Lumber Company sued defendant G. B. Mitchell on verified account for $8,060.25, and for foreclosure of materialmen's lien on the tract of land 75 feet wide and 100 feet long in the city of Eastland in the said county, together with the unfinished improvements thereon. The Clem Lumber Company intervened, and sought recovery against defendant and plaintiff for the sum of $1,780.15, and the foreclosure of materialmen's lien on the same property. Mitchell, among other defenses, pleaded that said property was homestead at the time plaintiff and intervener attempted to fix their respective liens and that no lien attached thereto, because the contracts for the purchase of the material and supplies sued for by them were verbal. Mrs. L. E. Mitchell, wife of defendant, made herself a party to the suit and joined in defending against foreclosure of said liens. There was a trial by jury on special issues. Upon the finding of the jury, the court rendered judgment in favor of plaintiff against defendant for the sum sued for, and in favor of intervener against defendant and plaintiff for the sum of $1,730.10, and against defendant alone for the sum of $50.15, and in favor of defendant, declaring the said property was homestead and refusing to establish or foreclose the liens thereon asserted by plaintiff and intervener. Plaintiff appealed. The Court of Civil Appeals reversed the judgment of the trial court so far as it denied a foreclosure of the liens asserted by plaintiff and intervener, and rendered judgment foreclosing the same. It reversed the judgment in favor of intervener against plaintiff, and remanded the cause as to them to the district court for another trial, and in all other respects affirmed the judgment. 241 S. W. 224. Both intervener and defendant applied for a writ of error, and both applications were granted.

Plaintiff and intervener were both dealers in building material in Eastland, Tex. The account sued on by plaintiff was for such material furnished defendant to be used in the erection of an apartment house on the lot described in its petition. Intervener alleged that it sold and delivered to the defendant for such purpose certain building material, as shown by its itemized account sued on, and further alleged that plaintiff had agreed to pay for the same, and that certain items constituting the major portion of its account were embraced in the account sued on by plaintiff. To this pleading plaintiff interposed a general demurrer which was overruled.

Plaintiff, on appeal, assigned as error the action of the court in overruling its general demurrer and submitted under such assignment the following proposition:

"The amended petition and plea in intervention of Clem Lumber Company was subject to general demurrer in that there was no allegation that the alleged agreement of plaintiff, Elliott Lumber Company, to pay the account of said Clem Lumber Company against defendant G. B. Mitchell was supported by any consideration; the alleged agreement not being such as under the law imports consideration."

The Court of Civil Appeals sustained said assignment and its action in reversing and remanding the cause on the issues between plaintiff and intervener was based thereon.

The defendant alleged that the plaintiff agreed to furnish to him all the material and supplies necessary to construct said apartment house, and that he agreed to pay plaintiff therefor in monthly installments. Plaintiff alleged that the material and supplies sued for by it were furnished to the defendant in pursuance of a contract made with him before any of said supplies were furnished, and that by the terms of such contract defendant bought the same from it, and it sold and delivered the same to defendant. These pleadings were on file and before the court at the time the demurrer was acted on.

On the trial of the case the manager of plaintiff testified that he did agree with defendant to furnish all the material for said apartment house and that the agreement was verbal. He further testified that he did not have the necessary tile and brick in stock and that he authorized the defendant to procure the same from some other dealer and promised to pay therefor. The account sued on by intervener to the amount of $1730.10 is for such tile and brick. The principal items in the account sued on by intervener are embraced in the account sued on by plaintiff.

The rule is well established that, when a pleading is challenged by general demurrer only, every reasonable intendment from the allegations contained therein, taken as a whole, will be indulged in support of its sufficiency. It is also well established that in determining whether the action of the court on such demurrer in any particular case constitutes reversible error the pleading attacked thereby must be considered in connection with the pleadings of opposite parties.

When intervener's petition is considered in connection with the pleadings of plaintiff and defendant, we think it sufficiently appears as against a general demurrer that plaintiff had agreed to furnish to defendant the very material which was furnished to him by intervener and that defendant had promised to pay plaintiff therefor, and that plaintiff authorized the defendant to procure such material from some other dealer and promised to pay such dealer therefor. Such construction is in harmony with the facts as testified to by plaintiff's manager on the trial of the case. The promise of defendant to repay plaintiff for such material was ample consideration for plaintiff's promise to pay for the same when furnished by some other dealer in pursuance of its own suggestion and agreement. The pleadings as a whole sufficiently allege the consideration for the promise of plaintiff to pay for the material furnished by intervener, and the Court of Civil Appeals erred in holding plaintiff's general demurrer well taken and in reversing the judgment against plaintiff in favor of intervener on that ground. Day Co. v. State, 68 Tex. 526, 538, 4 S. W. 865; Lyon v. Logan, 68 Tex. 521, 525, 5 S. W. 72, 2 Am. St. Rep. 511; Peoples v. Brockman (Tex. Civ. App.) 153 S. W. 907, 910 (writ refused), and other authorities therein cited; Wright v. McCampbell, 75 Tex. 644, 647, 648, 13 S. W. 293; Childress v. Robinson (Tex. Civ. App.) 161 S. W. 78, 81; Hand v. Sovereign Camp Woodmen of the World (Tex. Civ. App.) 214 S. W. 718, 720; Vrablec v. Kocurek (Tex. Civ. App.) 199 S. W. 876, 877; Hotel Dieu v. Armandariz (Tex. Civ. App.) 167 S. W. 181.

The defendant, Mitchell, is joined in his application for writ of error by his wife. They state in express terms that their complaint is predicated upon the issue of homestead alone. Mrs. Mitchell owned a house and lot in San Antonio which she, with her husband and children, occupied as a home. On or about January 1, 1920, while so occupying the same, she and her husband agreed together that they would procure a suitable lot in Eastland, erect an apartment house thereon, and move into and occupy the same as a home when completed. In pursuance of such agreement, and with such intent and purpose, defendant procured the lot involved in this suit and had plans for such house prepared, and on or about January 28, 1920, entered into a verbal agreement with plaintiff, by the terms of which plaintiff was to furnish to him all the material necessary to complete said house and he was to furnish the labor to erect the same and to pay plaintiff for such material. The first bill for material delivered on said job was dated January 31, 1920. Deliveries continued from time to time until the 28th of May following, when plaintiff declined to furnish any further material. The issue of breach of contract on the part of plaintiff was submitted to the jury and determined in plaintiff's favor. Plaintiff and intervener proceeded to fix a materialman's lien for the material furnished by each respectively, the regularity of which proceedings is in no way questioned. At the time plaintiff declined to furnish further material the apartment house was only partially completed. A two-story garage erected on said lot in the latter part of February or early part of March was immediately occupied by defendant and his four sons, all of whom were carpenters and working on said improvements at the time. From the time said lot was procured and the erection of said apartment house agreed upon, defendant and his said wife intended to abandon their home in San Antonio, move to Eastland, and occupy said apartment house as a home as soon as completed. With this purpose in view, as soon as said lot in Eastland was procured, they began to negotiate for the sale of the San Antonio property and early in January agreed upon terms for sale or exchange of the same. No written contract of sale was made, and no conveyance of the property executed or delivered, until March 16, 1920. The use of said property as a home continued until its sale, and by a...