Griffin v. Shamburger
| Decision Date | 23 April 1924 |
| Docket Number | (No. 2317.) |
| Citation | 262 S.W. 144 |
| Parties | GRIFFIN et ux. v. SHAMBURGER et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Wichita County; E. W. Napier, Judge.
Action by Mrs C. D. Shamburger and others against W. O. Griffin and wife. Judgment for plaintiffs, and defendants appeal. Affirmed.
Orus O. Ross and W. H. Sanford, both of Wichita Falls, for appellants.
Mathis & Caldwell and Jos. H. Aynesworth, all of Wichita Falls, for appellees.
On the 8th day of December, 1920, Griffin and wife, Mrs. Addie Griffin, executed a "mechanic's lien note" in the sum of $650, payable to the Factory Lumber Company 16 months after date, reciting that it was given in part payment for the construction of certain improvements upon a described lot in Wichita Falls. On the same day they executed a "mechanic's and materialman's lien" upon the same property described in the note, for the purpose of securing the payment of the latter. In preparing the note and lien printed forms were used, the originals of which are sent up with the record. In the lien contract the party of the second part is described as "Factory Lumber Company, Mrs. C. D. Shamburger, sole owner." The contract recites that the party of the second part agrees "to furnish all the lumber and materials for and to construct, erect and complete upon the lands and premises hereinafter described, in a good, workmanlike manner, and in accordance with the plans and specifications agreed upon between the parties, * * * the following improvements, to wit, five-room frame house, with bath" — the description of the improvements being written in the blank contract with typewriter. Immediately following this stipulation we find this paragraph:
"Said part ____ of the second part agree ____ to complete said improvements within _____ days from the date hereof, unavoidable accident alone excepted, a reasonable allowance however to be made in case of bad weather and to pay to the said parties of the first part the sum of $____,____ dollars, per day for each and every day's delay thereafter, as assessed or liquidated damages."
The contract describes the note as bearing interest at a rate of 8 per centum per annum from date. From an inspection of the original it appears that the rate of interest had originally been written at 10 per cent. The figures 1 and 0 have been partially erased and the figure 8 written over the naught. The figure 1 still appears dimly in the contract, but the figure 8 is more distinct than any of the other typewritten matter in the blank. Printed in the contract in several other places, "the construction of the improvements," and "the completion of said improvements," and equivalent statements appear. "10" appears in the blank space in the note as the rate of interest, written in ink, and the 0 shows to have been written over the 8, which appears to have been made with the typewriter. These details are material in view of certain contentions made by appellant, which will be hereinafter discussed. Plaintiff's first amended original petition, upon which the case was tried, contains this allegation:
"Comes now Mrs. C. D. Shamburger, joined herein pro forma by her husband, C. D. Shamburger, and complaining of W. O. Griffin and his wife," etc.
Plaintiff further alleged that Mrs. Shamburger was on the 8th day of December, 1920, doing business under the name of Factory Lumber Company, and on said date entered into a contract with the defendants for a certain bill of lumber, material, and supplies, which was thereafter to be delivered to said defendants, of the then reasonable cash market value of $650; that in pursuance of said contract the lumber was delivered by Mrs. Shamburger to the defendants. The contract is attached to the pleading, and marked "Exhibit A." The note is also attached and marked "Exhibit B." The plaintiff alleges the failure of defendants to pay for the lumber and materials furnished under the contract. No reference whatever is made to that part of the contract which appellants in their brief insist bound Mrs. Shamburger to construct the building. In a second count the petition alleges that the note has been altered by having the figures 1 and 0 (or 10) placed where the figure 8 was previously written. It is further alleged that 10, as the rate, was originally written in the note; that these figures were subsequently erased, and the figure 8, as the rate of interest, was afterwards inserted. They allege that they personally know nothing of such claimed alteration of the note; that it was done without their knowledge or consent, innocently, by some employee or agent of theirs, who had no evil intent or purpose to change the contract. They pray for a reformation of the note in that particular. In the alternative they allege that under the contract, which is valid and binding, the defendants are liable to them for the full amount sued for, even if the note should be held void, and pray for judgment upon the contract.
In their amended answer Griffin and wife, after a general demurrer, numerous special exceptions, and a general denial, allege that they did execute a note of the date and containing the terms of the note described in the petition, but that the rate of interest in said note has been altered from 8 per cent. to 10 per cent.; that it is a material alteration, and, having been made without their knowledge or consent, said note is void. They admit the execution and delivery of the contract, and that the entire amount of material, with the exception of some small items, had been delivered to them. They set up some credits which they claim should have been made upon the note, aggregating $357.05. They pray that the note and mechanic's lien be declared null and void, and, in the alternative, that if plaintiff should recover they be entitled to the full amount of credits claimed by them. No reference whatever is made to that term of the contract in the printed from which they insist in their brief bound Mrs. Shamburger to construct the building. A failure to comply with that term of the contract on her part is not urged in the pleadings as a defense. By first supplemental petition plaintiff again explained the apparent alteration of the note. No reference is made in any of the pleadings to the apparent alteration of the rate of interest, as set out in the printed contract. The case was tried to a jury. Only three issues were submitted, in response to which the jury found that no part of the material described in the petition was delivered prior to the execution and delivery of the note and lien contract and that the defendants did direct plaintiff to apply the $20 payment on the $650 note. Neither party asked for any additional findings. Based upon this verdict the court decreed that plaintiffs, Mrs. C. D. Shamburger and her husband, do have and recover of the defendants $601.42, and that the lien as it existed on the 8th day of December, 1920, be foreclosed upon the property described therein.
The first proposition urged is that the lien contract is so uncertain, vague, and indefinite as to be practically...
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