Henderson v. Couch

• Court: Texas Civil Court of Appeals
• Writing for the Court: GRISSOM
• Citation: Henderson v. Couch, 274 S.W.2d 844 (Tex. Ct. App. 1955)
• Decision Date: 14 January 1955
• Docket Number: No. 3132,3132
• Parties: W. O. HENDERSON et al., Appellants, v. Otto COUCH et al., Appellees.

Page 844

274 S.W.2d 844

W. O. HENDERSON et al., Appellants, v. Otto COUCH et al., Appellees.

No. 3132.

Court of Civil Appeals of Texas, Eastland.

Jan. 14, 1955.

Rehearing Denied Feb. 11, 1955.

Dell & Perry Barber, Frank Ginzel, Colorado City, Reagan H. Legg, Midland, for appellants.

Rodgers & Adams, Big Spring, Clarence E. McGaw, Snyder, for appellees.

GRISSOM, Chief Justice.

Otto Couch, Ross Hill and H. M. Jarratt, as trustees for the Baptist Temple Church of Big Spring, sued W. O. Henderson and others who claimed liens against the church lots and building. Plaintiffs alleged that as such trustees they held the title to said lots and building; that on July 17, 1952, they entered into an agreement with Baker Willis to construct a church building on said lots under the terms contained in a written cost plus fee contract which provided that plaintiffs were to furnish the lots and Willis was to obtain the material and labor and build a church according to certain plans and specifications, as an independent contractor, for the cost thereof plus a fee of $9,000.00; that after the work started a supplemental agreement was made with changed some of the plans and provided that Willis should construct said building under the terms of a fixed cost contract and that said agreement provided that Willis should obtain the material and labor, pay therefor and construct the building according to plans and specifications for $129,300. They alleged that copies of said contracts were attached to a prior petition and that they were made a part of the present petitions as if copied therein. The trustees alleged Willis undertook construction of said building and had almost finished it on February 10, 1953, when he abandoned the contract; that plaintiffs made payments as the work progressed until a total of $118,504.15 had been paid Willis; that, in addition thereto, Willis, in September, 1952, transferred and assigned to a bank his originally agreed fee of $9,000, which assigment was agreed to by the trustees, and Willis received $9,000 of a $50,000 loan made to the church by the bank and the church became liable and bound to pay said sum to said bank and the church thereby made a total payment to Willis of $127,504.15. A copy of said assignment and agreement by the trustees was attached to the petition. Plaintiffs alleged there remained a balance of $1,795.85 which plaintiffs would have been required to pay Willis if he had paid the materialmen and laborers, as he had agreed to do, and had completed the building according to the contract; that Willis failed to complete the building and abandoned the project and plaintiffs were required to spend $750 more to complete the building according to contract. Plaintiffs paid the remainder of the contract price, $1,045.85, into the registry of the court for disbursement to the defendant laborers and materialmen. Plaintiffs alleged that certain defendants, including appellants, had filed affidavits for liens against the church, the first of which was filed in April, 1953; that they were asserting claims to the money paid into court and plaintiffs could not pay them without the protection of a court order and plaintiffs asked the court to determine the defendants entitled thereto. Plaintiffs alleged that the defendants who had filed affidavits for liens had wrongfully clouded their title; that prior to receipt by plaintiffs of written notice from any of the defendants and before any of them filed affidavits attempting to fix liens plaintiffs had paid out to Willis, as an independent contractor, $127,504.15 of the contract price of $129,300 and that plaintiffs made no payments to Willis after receipt of any of such written notices or the filing or any affidavits. The trustees swore to tht petition and attached thereto the affidavit of the church treasurer that he was familar with the payments made to Willis for constructing the building; that checks had been issued to Willis for $118,504.15, which amount, 'together with the sum of $9,000 paid directly by the First National Bank in Big Spring is a total of $127,504.15 applied on the lump sum contract of $129,300, leaving a balance due Willis of $1,795.85, less the cost of completing the building.' He further swore that no payments were made to Willis after receipt of the first written notice or the filing of the first affidavit aforesaid and that the last check was issued to Willis on December 20, 1952. (It should be here noted that appellants' pleadings show they gave to notice to the owner and filed no affidavit for a lien prior to April, 1953.)

By way of cross action. Pittsburg Plate Glass Company alleged it entered into an agreement with Willis to furnish him, and Willis agreed to pay for, certain glass and other material used in the construction of the church; that it furnished said material and installed said glass in accord with its contract with Willis and completed its contract with Willis on February 19, 1953. It alleged that 'more than ten days prior to May 14, 1953' it notified the trustees of its debt and presented them an itemized account and on May 14th, filed an affidavit for a lien, and that it was entitled to a lien under the provisions of Articles 5452, 5453 and 5461, Vernon's Ann.Civ.St.

In the alternative, it alleged the trustees were indebted to it for the material and labor furnished because the plans and specifications of the church's architect provided the contractor should execute a bond guaranteeing payment of all such bills and that not more than 85% of the contract price would be paid the contractor before completion of the building; that a copy of said plans and specifications was submitted to it, it relied thereon and furnished material and labor on the representations therein that a bond 'had' been executed and that the trustees would retain 15% of the contract price; that no bond was required of Willis and the trustees failed to retain 15% of the contract price, and further that the contractor were required to retain 10% of the contract price for 30 days after completion of the building but they had failed to do so and 'that the contract price agreed upon by the church and Baker Willis was $129,300.00.'

The glass company then alleged that 'the trustees were negligence in presenting to it (1) that a bond would be, or had been, required of Willis, by submitting to it the plans and specifications; (2) in failing to require a bond; (3) in failing to retain 15% and (4) in failing to retain 10% and that each of said acts was a proximate cause of its damage.

The glass company alleged that Willis did not act as an independent contractor but as agent of the trustees in the purchase of its material and labor and it was, therefore, entitled to judgment against the church. In the alternative, it asked for judgment against Willis. Attached to its cross action were invoices, the first of which was dated Junuary 15, 1953.

The other defendants who filed affidavits attempting to fix liens against the building answered collectively and filed a cross action on their accounts and sought foreclosure of asserted liens; they alleged they sold material and performed labor in construction of the church in pursuance of a contract between themselves and the church and Willis. They prayed for judgment against the trustees and Willis, jointly and severally. In the alternative, they prayed that, if they did not have a contract with the church or its agent, they have judgment over against the church for the amount of their judgments against Willis 'not to exceed 15% of the construction price agreed to be retained by the trustees.' They alleged that the trustees either distributed the plans and specifications or caused them to be distributed and they relied thereon and furnished material and labor under the belief that 15% would be withheld. In the second alternative, said defendants alleged that, if it should be determined they were not entitled to be paid out of said 15%, under Article 5469, they were entitled to judgment against the trustees for 10% of the cost of said building. They prayed for judgment for their debts, attorneys fees, foreclosure and an order of sale. (Plaintiffs excepted to defendants' answers and cross actions but, according to recitals in the judgment, they were not passed on.)

The trustees alleged in an answer to defendants' cross actions that it was more than 90 days after each of the defendants furnished the last material to Willis before they filed affidavits for a lien and that they failed to comply with the requirements for fixing a lien. The trustees pleaded the statutes of limitation; they alleged the material and labor were furnished to an independent contractor and that they had paid all sums due the contractor, except as heretofore shown, prior to the receipt of any notice or the filing of any affidavit and they denied that Willis acted as their agent in purchasing material and obtaining labor and alleged he was an independent contractor. Their answers were sworn to.

Thereafter, the trustees filed a motion for a summary judgment. They alleged that the pleadings, together with the attached affidavits, showed, except as to the funds tendered into court, that there was no genuine issue as to any material fact and they were entitled to judgment cancelling defendants' purported liens and removing the cloud on their title. Attached to said motion was the affidavit of the trustees that they executed a contract with Willis, as an independent contractor, to build the church building; that thereafter they entered into a 'lump sum agreement'; that said supplemental contract provided for a total payment of $129,300 to Willis, and that this included all payments for material and work under the first contract. Copies of said contracts were attached to the motion.

The trustees swore that after making the first contract with Willis they borrowed from a bank $50,000; that they paid directly to Willis...