Dallas Plumbing Co. v. Harrington

• Court: Texas Court of Appeals
• Writing for the Court: Looney
• Citation: Dallas Plumbing Co. v. Harrington, 275 S.W. 190 (Tex. App. 1925)
• Decision Date: 06 June 1925
• Docket Number: (No. 9390.)
• Parties: DALLAS PLUMBING CO. v. HARRINGTON et al.

Page 190

275 S.W. 190

DALLAS PLUMBING CO. v. HARRINGTON et al.

(No. 9390.)

Court of Civil Appeals of Texas. Dallas.

June 6, 1925.

Appeal from District Court, Dallas County; Louis Wilson, Judge.

Action by the Dallas Plumbing Company against D. V. Harrington and others to recover balance due for labor and material and for foreclosure of mechanic's lien. From a judgment rendered for plaintiff against D. V. Harrington for the debt, but denying other relief, plaintiff appeals. Reversed and remanded, with instructions.

Geo. K. Holland, of Dallas, for appellant.

J. J. Eckford, of Dallas, for appellees.

LOONEY, J.

The Dallas Plumbing Company, appellant, sued D. V. Harrington and wife to recover a balance due for labor and material used in the installation of plumbing fixtures and equipment in a house erected by them, and to foreclose the statutory lien on the land and improvements erected thereon.

The Flippen-Prather Realty Company was made a defendant on the allegation that it was asserting title to the property; the other defendants, to wit, Leonard R. Leonard, Ray Kramer, Locksley Fife, and Fulsom Fife, were brought in on the allegation that they claimed valid mechanic's and materialmen's liens on the same land and improvements.

The case was tried by the court without a jury, and judgment was rendered for appellant against D. V. Harrington for the debt, but was denied other relief.

The only parties to this appeal are the Dallas Plumbing Company, appellant, D. V. Harrington and wife, and the Flippen-Prather Realty Company, appellees.

The facts are these:

Flippen-Prather Realty Company, a corporation, conveyed to Elizabeth Cole Harrington, wife of D. V. Harrington, a lot of land situated in the fourth installment of Highland Park addition to the city of Dallas, in consideration of $3,500, payable, cash, $87.50, and the balance evidenced by a note for $3,412.50, executed by Harrington and wife, payable to the order of the realty company due one year from date, and secured by a vendor's lien retained on the lot of land.

Simultaneously with the execution of the deed of conveyance, Harrington and wife conveyed to W. Worrill the land, in trust, for the purpose of securing the payment of the purchase-money note. The trust deed contained the usual provisions of such an instrument; among others, one providing for the sale of the premises in the event the grantors made default in payments.

Harrington and wife also entered into a contractor's or mechanic's lien contract with the Dallas Lumber Company to construct, according to plans and specifications, certain improvements on the land, the effect of which is that the lumber company agreed to furnish and provide labor and material to the extent of $5,250 towards the erection of the house and improvements, for which it was given, by Harrington and wife, the statutory lien on the lot and the improvements to be erected.

In consideration of the agreement by the Dallas Lumber Company to advance for labor and material the sum of $5,250 for the erection of improvements on the lot, the Flippen-Prather Realty Company executed, in writing, an instrument subordinating its vendor's lien note of $3,412.50 to the notes held by the lumber company aggregating $5,250.

After the execution of these instruments, and while the work of erecting the house was in progress, D. V. Harrington made a parol agreement with appellant to install in the house certain plumbing fixtures and equipment amounting to the sum of $515, of which amount the sum of $250 was subsequently paid, leaving a balance of $265, for the security of which, in due time, appellant, in compliance with the statutes of the state, fixed its lien on the lot of land and improvements.

The sworn account filed by appellant in the office of the county clerk, in fixing its lien, described the fixtures and equipment installed in the house as follows: 1 L-2000 closet complete; 1 Hopper closet complete; 1 P-2317 L 5-foot bath tub complete; 1 P-3115 E 20×24 lavatory complete; 1 P-7020 18×30 sink complete; 1 No. 2 Pittsburg heater; 2 sill cocks.

Harrington and wife made default in the payment of the purchase-money note described in the deed of Flippen-Prather Realty Company to Mrs. Harrington, and, at the instance of the company, the trustee, in accordance with the provisions of the trust deed, advertised and, on the first Tuesday in June, 1923, sold the land and improvements to Flippen-Prather Realty Company for the consideration of $3,600, and at the time of the institution of this suit the realty company claimed title to the land and improvements to the exclusion of the claim asserted by appellant.

Appellant, by appropriate assignment and proposition, challenges the correctness of the finding of the court to the effect that it failed to prove the existence of a contract between it and Harrington and wife for the installation of the plumbing fixtures and equipment as alleged. Appellee answers that the finding of the court is correct, in view of the variance developed on the trial between appellant's allegations and proof.

Appellant alleged that D. V. Harrington and wife, Elizabeth C. Harrington, made a verbal contract with it for the installation of the plumbing fixtures, supplies, equipment, and labor necessary for the installation; that Harrington and wife obligated themselves to pay appellant for the plumbing material, equipment, labor, etc., the sum of $515.

The evidence introduced was to the effect that the contract for the installation of the plumbing fixtures and equipment was made between appellant and D. V. Harrington, who claimed to own the property. The sworn account filed by appellant, with the county clerk, fixing its lien, recites that the material and equipment were furnished by it to D. V. Harrington, who was the reputed owner of the house, lot, and improvements.

The legal effect of the conveyance of the lot by Flippen-Prather Realty Company to Mrs. Harrington was to vest title to the property in the community estate of herself and husband. The conveyance contains no recitation rebutting this presumption, and no fact is shown in the record indicating that it was the intention of the parties to make the lot the separate property of Mrs. Harrington. Douthitt v. Farrar (Tex. Civ. App.) 159 S. W. 182; Houston Oil Co. v. Choate (Tex. Civ. App.) 215 S. W. 118.

Under the law of this state, during coverture, the husband is the head of the family, the manager of the community estate of himself and wife, and, barring certain exceptions not necessary to mention in this connection, is alone authorized to contract community debts and dispose of community property.

The question is, Was there a fatal variance between appellant's allegations to the effect that the verbal contract for the plumbing outfit was...