Hess v. Denman Lumber Co., (No. 2157.)

• Decision Date: 02 February 1920
• Docket Number: (No. 2157.)
• Citation: 218 S.W. 162
• Parties: HESS v. DENMAN LUMBER CO.
• Court: Texas Court of Appeals

218 S.W. 162

HESS v. DENMAN LUMBER CO.

(No. 2157.)

Court of Civil Appeals of Texas. Texarkana.

February 2, 1920.

Rehearing Denied February 12, 1920.

Appeal from Camp County Court; C. E. Bryson, Judge.

Suit by the Denman Lumber Company against Aubrey Hess. Judgment for plaintiff, and defendant appeals. Reversed and rendered for defendant.

The appellant was the owner of a lot in Pittsburg, Tex., upon which he desired to build a two-story frame residence to be occupied as a homestead by himself and his family. On April 26, 1917, appellant and his wife entered into a written contract with J. A. Knight by the terms of which J. A. Knight contracted and agreed to build the residence and to furnish all the lumber and material required for that purpose; the appellant to pay J. A. Knight $4,500, as follows, $1,000 cash upon the completion of the building, and a promissory note for $3,500 payable in five annual installments of $700 each on April 20th of each year, and to secure the payment of the note a mechanic's and materialman's lien was to be given on the lot and improvements. The terms of the contract were fully complied with by the appellant and his wife, and J. A. Knight duly registered his lien in the county clerk's office. J. A. Knight made an assignment of the contract and transferred the note to Frank Davis on April 26, 1917. In the terms of the assignment of the contract Frank Davis was to pay J. A. Knight the $3,500 called for in the note as follows:

"Eighty per cent. of the value of the work done and material furnished as arrived at at intervals as he may deem it safe to do so, such payment to be made upon the estimates approved by the architect and G. A. Hess, the owner" —and the entire amount to be due upon the completion and acceptance of the building by the owner. This transfer was duly acknowledged and placed of record in the county clerk's office. The appellee sold and delivered to J. A. Knight lumber and other building materials which were used by J. A. Knight in construction of the building to the amount of $2,205.92, and of this amount J. A. Knight failed to pay the appellant the sum of $305.92. The appellee brought the suit against the appellant for the $305.92 in the nature of an action for damages for a tort in negligently failing—

"to reduce the contract made between him and the said J. A. Knight for the erection of said building to writing and to file it in the office of the county clerk of Camp county, and his further failure and refusal to require of the said J. A. Knight a written bond with good and ample sureties in a sum at least equal to a three-fourths of the contract price of the building, payable and conditioned for the faithful performance of his contract and guaranteeing the payment of the value thereof to all persons, firms, and corporations who furnish any materials used in said building to the said contractor."

It was further alleged that J. A. Knight, though requested, had failed to pay the amount due, and that J. A. Knight was insolvent. The defendant answered by demurrer, denial, and specially that he had no notice that J. A. Knight was indebted to the plaintiff and that the plaintiff never fixed a lien as authorized to do. There was a trial before the court without a jury, and a judgment for the plaintiff. The court filed conclusions of fact and of law. The court's findings are that no bond was executed and delivered to G. A. Hess and wife by J. A. Knight for the faithful performance of the contract according to its terms as required by law; that J. A. Knight is insolvent; that the plaintiff did not attempt to comply with articles 5623 and 5632 of the Revised Statutes by giving to G. A. Hess written notices of the items of building material furnished to the said Knight and how much there was due and unpaid on the bill of material furnished to the said Knight, and did not within 90 days after the indebtedness accrued file in the office of the county clerk of Camp county an itemized account of the claim; and—

"9. That upon the completion of said house by the said Knight the said G. A. Hess accepted the same and paid to him the balance of the sum of $1,000 cash consideration then owing to the said Knight under the terms of said contract. That at the time of the said final payment by the said Hess to the said Knight the said Hess had never received any notice from plaintiff of the amount of any indebtedness owing by the said Knight to the...