Higginbotham-Bartlett Co. v. Dickey, 680.

• Citation: 27 S.W.2d 248
• Decision Date: 28 March 1930
• Docket Number: No. 680.,680.
• Parties: HIGGINBOTHAM-BARTLETT CO. v. DICKEY et al.
• Court: Texas Court of Appeals

27 S.W.2d 248

HIGGINBOTHAM-BARTLETT CO. v. DICKEY et al.

No. 680.

Court of Civil Appeals of Texas. Eastland.

March 28, 1930.

Rehearing Denied April 25, 1930.

Appeal from District Court, Eastland County; Elzo Been, Judge.

Action by the Higginbotham-Bartlett Company against William Dickey and Dr. J. H. Caton. From a judgment denying recovery against defendant Caton, plaintiff appeals.

Affirmed.

J. R. Stubblefield, of Eastland, for appellant.

Turner, Seaberry & Springer, of Eastland, for appellees.

FUNDERBURK, J.

Dr. J. H. Caton contracted with William Dickey for the latter to furnish the labor and material and construct a residence for the former. Dickey applied to Higginbotham-Bartlett Company to purchase the necessary lumber and building material. That company made inquiry concerning the financial responsibility of Dickey, and before making any reply as to whether or not they would furnish the lumber and materials, went to Dr. Caton, and after some preliminary discussion, Mr. Cy Perkins, the agent and representative of the company, asked Dr. Caton the following question: "What I want to know is whether you will see that I get my money and hold back enough money to pay me for the material in case Dickey won't do it?" To this Dr. Caton replied: "Cy, I will see that you get every cent of your money, and if there is any suing to be done I will do it." Perkins then said: "That is exactly what I came up here for and what I wanted to see." To this Dr. Caton said, "All right." Thereafter, Higginbotham-Bartlett Company furnished and charged to said William Dickey lumber and materials in the aggregate sum of $4,361.26, of which $2,810.95 was paid, leaving a balance of $1,550.31.

Dickey failed to pay such balance, and Higginbotham-Bartlett Company filed this suit against William Dickey and Dr. J. H. Caton, seeking judgment against both for such balance. Plaintiff's pleading makes claim as against Dickey for the debt upon account, alleging that the lumber and materials were furnished him at his special instance and request, and alleging his promise to pay same, and failure to do so.

As a basis for fixing the liability of Dr. J. H. Caton, the original petition alleged: "* * * Plaintiff specifically asked the said Dr. J. H. Caton whether he (Caton) would see that the amount of lumber and material sold to the said William Dickey for the construction of said house was paid, provided the plaintiff would sell said lumber and material to the said William Dickey; that he, the said J. H. Caton, would guarantee and see that said account was paid, and that he would pay the same in the event the same was not paid by the said William Dickey."

Then followed allegations to the effect that such agreement was made prior to selling the materials to Dickey, which otherwise would not have been done, the default of Dickey, etc.

Dr. Caton pleaded the statute of frauds. Plaintiff filed another pleading styled "Reply to the original answer of Dr. J. H. Caton." This pleading does not purport to supersede plaintiff's original petition, nor is it complete without reference to such original petition. It is not thought that it adds anything material to the original plea. As to the agreement between plaintiff's agent and Dr. Caton, it alleges, "that said Dr. Caton then and there specifically and definitely told and stated to this plaintiff that if this plaintiff would sell and deliver to the said Dickey the lumber and material desired and needed for the construction of the said building, that in the event the said William Dickey failed to pay off and discharge any and all such obligations as might be incurred for said lumber and material which were thereafter to be used in the construction of said building for Dr. J. H. Caton that he, the said Dr. J. H. Caton, would personally see and guarantee that said bill for said lumber and material would be paid. That this plaintiff then and there stated to the said J. H. Caton that, relying on said assurance, plaintiff would sell and deliver to the said Dickey the lumber and material for the construction of said building for the use and benefit of the said Dr. Caton," etc.

The case was tried by the court without a jury. Judgment was rendered in favor of plaintiff against William Dickey for the amount sued for, but recovery against Dr. J. H. Caton was denied. From the judgment denying such recovery the plaintiff has appealed.

The trial judge, upon request, filed findings of fact and conclusions of law. No...