Green v. John Dallahan & Co.

• Decision Date: 15 February 1881
• Docket Number: Case No. 475.
• Court: Texas Supreme Court
• Parties: ROWAN GREEN v. JOHN DALLAHAN & Co.

54 Tex. 281

ROWAN GREEN

v.JOHN DALLAHAN & Co.

Case No. 475.

Supreme Court of Texas.

Feb. 15, 1881.

APPEAL from Colorado. Tried below before the Hon. Livingston Lindsay.

Suit by appellees against appellant. They alleged in their petition that they were engaged in carrying on a general lumber and house-building material business, and that one J. Paul, as their agent, was in charge of the business; that at the request of appellant, through their agent, Paul, they sold and delivered to him, between the first of June, 1873, and the first of January, 1874, a large lot of building lumber, shingles, doors, blinds, etc., amounting in value to four hundred and sixty-one and ten one-hundredth dollars. A bill of particulars was attached and made part of the petition. That the articles mentioned in the bill so sold and delivered to appellant were used by him in building houses, fences, etc., on original lot 1, in block 36, in the town of Columbus, appellant's residence; that they had filed their bill of particulars under oath with the clerk of the district court of Colorado county, and had given notice of their intention to claim a lien on the lot and buildings thereon, for the material furnished them. They prayed for judgment against appellant for amount of account ($461.10), with interest thereon from the first day of October, 1873, and for the enforcement of their lien, and sale of the property.

The appellant filed a general demurrer and general denial, and answered specially that he did not owe any part of said account; that he had made a written contract with one Durland to build his house and improvements, and furnish everything, and agreed to pay him therefor $1,800 in specie; that he had never agreed or promised to pay the account sued on, or any part of it; that on the 1st of January, 1874, he had a final settlement with Durland and paid him the contract price, $1,800; that his homestead is on original lot No. 1, block 36; that appellees had slandered his title to the property by illegally asserting a pretended lien thereon, and having a record made of the same, to his damage $1,000, which he pleaded in reconvention.

The case was tried before a jury, which found their verdict for plaintiff for $384 coin, and $123.20 currency, with a lien on the property. Judgment was rendered against appellant for amount of the verdict, and lien foreclosed on the lot.

The appellant assigned as error--

1st. The court erred in its rulings, as shown by bill of exceptions filed. 2d. The court erred in its charge to the jury.

3d. The court erred in overruling the motion for a new trial.

The bill of particulars giving the particular articles sold and delivered appellant by appellees, sworn to and filed for record with the clerk of the district court on the 17th of March, 1874, was read in evidence.

The witness, J. Paul, testified that Durland came to appellees' lumber yard, in his charge, and ordered bills of lumber, for the purpose of constructing the house and improvements of appellant; that he refused to let Durland have the lumber; that witness afterwards met the appellant, and told him that Durland wanted to purchase lumber, etc., from him to build his (appellant's) new house, but that he refused to let him have it unless he (appellant) would agree to pay for it. The appellant at first refused to pay for the lumber, saying that he had made a contract with Durland to build his house and furnish everything, for $1,800 specie; but when witness told him that he would not let Durland have the lumber and material unless he agreed to pay for it, the appellant told him to furnish the lumber, etc., to Durland, and that he would pay for it; and, with this understanding, witness furnished the lumber, etc., to Durland to build appellant's house, etc. The witness produced in court the books of original entries of appellees, which showed that none of the articles furnished Durland by appellees were charged to him, but that they were charged to Rowan Green; further, the witness stated that appellant got him to have the window blinds charged in the bill of particulars, manufactured at Galveston, which he did, and that he charged only the cost and freight.

Durland testified that he had ordered the lumber for appellant's house from appellees' agent, Paul, and the lumber not being furnished, he called on Paul to know the reason why, who told him he could not let it go unless he would be sure of his pay; thereupon witness told him that he must see the appellant, and Paul said that he would. In a day or two witness received the lumber, and continued to receive it as the work progressed. Appellant testified that he never promised at any time to pay for lumber furnished Durland to build his house, and never told Paul to let Durland have lumber and material and that he would pay for it; that Durland had contracted to build his house, etc., complete for $1,800 specie; that Paul had presented him a lumber bill for $643.50 coin, in May, 1873; he refused to pay it unless Paul would obtain the written order of Durland, which Paul did. He admitted that when he finally settled with Durland in January, 1874, and paid him the contract price for building the house, he knew that the account sued on was unpaid, but he did not consider that he owed any portion of it.

John T. Harcourt, for appellant.

I. The facts and circumstances of this case show that the promise made by the defendant Green was collateral, and not an original promise, and...