Evans v. Galbraith-Foxworth Lumber Co.

• Decision Date: 25 May 1932
• Docket Number: No. 3803.,3803.
• Citation: 51 S.W.2d 831
• Parties: EVANS et ux. v. GALBRAITH-FOXWORTH LUMBER CO. et al.
• Court: Texas Court of Appeals

51 S.W.2d 831

EVANS et ux. v. GALBRAITH-FOXWORTH LUMBER CO. et al.

No. 3803.

Court of Civil Appeals of Texas. Amarillo.

May 25, 1932.

Rehearing Denied July 6, 1932.

Error from District Court, Hutchinson County; E. J. Pickens, Judge.

Action by the Galbraith-Foxworth Lumber Company and others against Henry Evans and wife. Judgment for plaintiffs, and defendants bring error.

Affirmed.

See, also, 43 S.W.(2d) 481.

Works & Bassett, of Amarillo, Lackey & Lackey, of Stinnett, and Hoover, Hoover & Cussen, of Canadian, for plaintiffs in error.

Madden, Adkins, Pipkin & Keffer, Underwood, Johnson, Dooley & Simpson, and Slough & Gibson, all of Amarillo, and G. C. Harney and Jos. H. Aynesworth, both of Borger, for defendants in error.

MARTIN, J.

A full statement of this case is made on a former appeal, reported in (Tex. Civ. App.) 31 S.W.(2d) 496.

The pleadings are practically the same as on the former appeal, with the exception of a trial amendment, to which reference will be made later in this opinion. For convenience the parties will carry the same designation as in the trial court, of plaintiff and defendants. We deem it unnecessary to again make a statement further than to throw a background behind the law points hereafter discussed.

Plaintiff, Galbraith-Foxworth Lumber Company, filed suit against Henry Evans and wife, Adella Evans, and others not necessary to mention, alleging, in substance, that between November 30, 1926, and December 4, 1926, the plaintiff sold and delivered to defendant Henry Evans, upon oral contract, certain building material for the construction of a one-story brick and tile building to be erected upon lot 13 in block 36, town of Borger, Tex., and asking for a foreclosure of its materialman's lien against said property, making averments that properly showed the fixing of such lien under the statute, and alleging that its various items aggregated the sum of $2,157.65.

To this petition the defendant Mrs. Adella Evans filed answer, claiming the above property as her homestead, alleging, among other defenses, in substance that she and her husband never at any time occupied or maintained a home in Borger until they moved into and occupied the premises above described, and that at the time of the purchase of the materials aforesaid they had and maintained no home or permanent place of abode.

The answer of defendant Henry Evans was substantially the same.

To this the plaintiff answered by a supplemental petition that, at the time of the purchase of said materials, defendants were living and making their personal abode upon lot No. 3, block 29, town of Borger, Tex Supplemental answer was thereupon filed by Adella Evans specially denying that she ever had a homestead upon lot No. 3, block 29, and averring that her first and only homestead in Texas was upon said lot 13.

The Borger Townsite Company, on May 1, 1926, bargained, sold, and obligated itself to convey to Henry Evans all of said lot No. 3, block 29. Thereafter Evans and wife built a store building upon said lot, and the facts in evidence are sufficient to support the jury's finding that such property was at one time the homestead of defendants. It appears that all interest in this property was, in February, thereafter, assigned by defendants to the First National Bank of Amarillo, Tex. In the latter part of October, 1926, defendants purchased the lot in controversy with the claimed intention of making it a home, and almost immediately thereafter began preparations to carry into effect their intention by the purchase of material and the erection of a brick and tile building thereon.

The real issue in this case seemingly arose out of the dispute as to when the said lot 3 was abandoned as a homestead and another acquired upon lot 13.

The jury, in response to issues Nos. 1 and 2 submitted by the court, found that defendants had a residence homestead upon lot 3, block 29, and that they moved therefrom to the building on lot No. 13, block 36, with the intent and purpose upon their part to abandon their said residence homestead.

The answer of the jury to special issue No. 3, being here under vigorous attack, we quote literally the entire issue submitted, including the directory or explanatory charges of the court:

"Question Number 3.

"In the event you have answered question Number 2 that the defendants Evans and wife did move from and abandon the said lot number 3 as their homestead, then answer the following question:

"When did the said defendants so remove their home if any they had, from said lot number 3, in Block 29? Answer this question by stating the date, or in lieu of an exact date you may state the approximate date you find, in which event show in your answer that same is the approximate date."

"Supplemental Charge of the Court.

"In answering question No. 3, in the Court's main charge, you were instructed to state the date or in lieu of an exact date to state the approximate date you find, if the date you find is the approximate date to state that it is the approximate date. In your answer to this question you have stated a date, or that such date is the approximate date. You will retire and answer question Three by filling in the exact date or approximate date and if you find a definite date, give same, leaving off any reference as to approximate date, but if you are unable to fix a definite date, then in that event, and in that event only, state the approximate date, and state that it is the approximate date."

To which question the jury answered: "Approximately December 20, 1926."

The chief contention on this appeal is that the finding "Approximately December 20, 1926," as set out above, vitiates the verdict, rendering it so vague and indefinite as that it may not constitute the basis of a valid judgment herein. It will be noted above that this finding responded to the question asked by the court. The jury was expressly authorized to return a finding of an approximate date. To the form of the issue thus submitted and the explanatory charges in connection therewith, the defendants in the trial court filed no objection of the character now made; they appearing for the first time on appeal. It must have been obvious and known to both sides that the trial court, in submitting an approximate date, intended to use same as a basis for figuring the amount owing by defendants which was legally secured by a valid materialman's lien. After this finding he did, in fact, use this date, the judgment of foreclosure applying only to items sold prior to this time and a foreclosure being refused for the amount of all items sold and delivered after this date. The statute itself which requires objections to a charge to be made in the trial court would furnish a compelling reason for overruling the contention of defendants, but we are not without precedent for the announcement that an objection of the...