First Baptist Church of Tyler v. Carlton Lumber Co.
| Decision Date | 26 February 1915 |
| Docket Number | (No. 1363.) |
| Citation | 173 S.W. 1179 |
| Parties | FIRST BAPTIST CHURCH OF TYLER et al. v. CARLTON LUMBER CO.<SMALL><SUP>†</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Smith County; R. W. Simpson, Judge.
against the First Baptist Church of Tyler, Tex., and others, to foreclose a mechanic's lien. Judgment was rendered personally for the plaintiff against the contractor and for foreclosure of a lien against the building. From that part of the judgment decreeing the foreclosure, the defendants appeal. Reversed, and rendered for defendants.
The suit was by appellee against appellants for foreclosure of a mechanic's lien in the sum of $2,789.93. It appears that the First Baptist Church of Tyler entered into a written contract with the McGavick Construction Company for the erection and completion of a brick and concrete church building, and to provide all materials and perform all work mentioned in the drawings and specifications prepared by an architect, including heating, plumbing, and electric wiring complete. The contract was dated September 26, 1911. The church was to pay the contractor the fixed sum of $39,950.85 for the whole of the work and the materials. By the terms of the contract payments out of the contract price were to be made the contractor, on written certificate of the architect, every 30 days during the progress of construction, not to exceed 80 per cent. of the labor performed and material placed in the building at the time of such estimates; the final payment to be made within 30 days after the contract was fulfilled. Article 5 of the contract provided, in effect, that if the contractor at any time during the progress of the work should neglect or refuse to supply a sufficiency of materials or properly skilled workmen, or should fail to prosecute the work with promptness and diligence, and the architect certified such failure, the church should have the right, after 3 days' notice in writing to the contractor, to terminate the employment of the contractor for the work, and to employ other persons to finish the work and provide the materials therefor, and that the expense should be deducted from the contract price. The entire contract in writing appears in the record, and is here made a part of the findings of fact. The construction company gave to the church a bond executed by the Western Casualty & Guaranty Insurance Company, conditioned that the construction company would faithfully comply with the terms and conditions of its contract. The construction company entered upon the performance of the contract and erected the greater part of the church building. Up to October 2, 1912, there had been paid out to the contractor by the church for labor and material that had gone into the building a sum in the amount of $31,000. At that date, with extras added, the contract price amounted to $41,585.60. On October 2, 1912, on estimate of the architect the church paid the contractor $420.57. On October 12th, on estimate of the architect, the contractor was paid $1,142.72. Through inability of the contractor to further finance the work, the church committee, on October 24, 1912, advanced to the contractor, by consent of the bonding company, $3,000 of the contract price, to be applied to labor and material for the completion of the building. Prior to advancing this sum the architect, at the request of the contractor and the church committee, went over the work done in detail and made estimate of the amount of the contract price unpaid and the cost required to complete the building. The estimate of the architect was that it would take $9,582.30 to complete the work under the contract, which amount included "the balance due on the heating plant" and "the amount due the Carlton Lumber Company, and further bills unpaid." It was estimated that there was approximately $10,000 of the contract price unpaid, inclusive of the balance due on the heating plant. On December 10, 1912, because of inability to finance the work, the contractor entirely ceased work on the building, and, in point of fact,...
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...force the rightful payment of the impounded fund to those who invoked the procedure. Horan v. Frank, 51 Tex. 401; First Baptist Church v. Carlton Lumber Co., 173 S. W. 1179 (writ of error denied by the Supreme Court, 183 S. W. xv); First National Bank v. Lyon-Gray Co., 194 S. W. 1146; Lyon-......
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