Houston Lumber Supply Co. v. Wockenfuss

• Decision Date: 14 January 1965
• Docket Number: No. 14408,14408
• Citation: 386 S.W.2d 330
• Parties: The HOUSTON LUMBER SUPPLY COMPANY et al., Appellants, v. Leo WOCKENFUSS et ux., Appellees.
• Court: Texas Court of Appeals

Page 330

386 S.W.2d 330

The HOUSTON LUMBER SUPPLY COMPANY et al., Appellants, v. Leo WOCKENFUSS et ux., Appellees.

No. 14408.

Court of Civil Appeals of Texas, Houston.

Jan. 14, 1965.

Rehearing Denied Feb. 4, 1965.

Charles M. Leftwich, Sidney Farr, Houston, Barrow, Bland, Rehmet & Singleton, Houston, of counsel, for appellants.

Tom Alexander, Pearson Grimes, Houston, Butler, Binion, Rice & Cook, Houston, of counsel, for appellees.

COLEMAN, Justice.

This is a suit to cancel and enjoin enforcement of a promissory note together with the deed of trust and mechanics' lien securing it. The defendants in the trial court filed a cross-action for the balance due on the note and judicial foreclosure of the liens securing same, and, in the alternative, for recovery in quantum meruit of the market value of the improvements constructed on plaintiffs' lot. Judgment was entered based on the verdict of a jury cancelling the note, deed of trust and mechanics' lien and adjudging that the defendants take nothing on the cross-action.

The Houston Lumber Supply Company, appellant, contracted with appellees to construct a dwelling house on a vacant lot owned by appellees in accordance with certain plans and specifications. In response to special issues, the jury found that appellant did not substantially perform the contract; that the work performed under the contract was not done in a good, workmanlike manner; that the market value of the house built by appellant on appellees' lot, on the date appellees occupied it, was $4,250.00; that at the time of signing the deed of trust and mechanics' and materialmen's lien appellees intended to occupy the house to be built on their lot as their home and that prior to that time appellees had done overt acts of preparation evidencing a purpose to carry out such intention within a reasonable time limit other than buying the lot, approving the plans and making the contract for the construction of the house.

Appellant does not attack the finding of fact that at the time appellees executed the instruments purporting to create a lien on their lot they intended to occupy the house to be erected thereon as their home, but they contend that the finding concerning overt acts of preparation is supported by no evidence, or, alternatively, is contrary to the great weight and preponderance of the evidence.

Appellees emigrated to this country from West Germany in 1952. Leo Wockenfuss, herein referred to as appellee, testified that ever since he had been in this country he had planned to build a house for his wife and that he had saved his money for that purpose. After he moved to Houston he bought a house, which he sold in 1959. Then he rented a house. He and his wife looked for a lot for several months before they found the one they wanted and also looked at houses to find the kind of house he wanted to build. He was operating a filling station at that time and one of his customers was R. A. Burrage, the assistant manager of appellant Lumber Supply Company. Appellees took Mr. Burrage to see the house they liked and he prepared some house plans for them based on this house, but incorporating certain changes suggested by Mrs. Wockenfuss. They also took Mr. Burrage to see the lot they had chosen on more than one occasion before any of the contract instruments were signed and, according to appellees, before the lot was purchased, and on Burrage's advice he arranged to buy five more feet of land. Appellee testified that he bought the lot to make it his home for the rest of his life and when he bought it he owned no other property anywhere. While discussing plans for building Mr. Burrage pointed out that a large tree would have to be removed. Before the instruments were signed appellee removed the tree and dug up the stump. He also cleared the lot and staked in out. Accepting as true the testimony of appellee, these facts must have been known to Mr. Burrage before the lien instruments were signed. The deed of trust and mechanics' and materialmen's liens were not acknowledged before a notary public by either of appellees, and these instruments, together with the promissory note were executed on September 19, 1960, and the note recites that it is secured by these lien instruments. The contract to build had been previously entered into on September 12, 1960, and was not acknowledged. This evidence was clearly sufficient to support the answer made by the jury to special Issue No. 5, which asked whether appellees had done any overt acts of preparation evidencing a purpose to make their home on the lot within a reasonable time.

Appellants contend that the fact findings made by the jury, together with the undisputed facts, are insufficient to support the conclusion of law that the lot constituted appellees' homestead.

'* * * in order to impress upon property a homestead character, in the absence of actual occupancy thereof, there must be an intention by the head of the family to reside upon it with his family as a home, coupled with some overt act of preparation evidencing that intention.' (Gilmore v. Dennison, Tex.Com.App., 131 Tex. 398, 115 S.W.2d 902, opinion adopted)

The issues submitted to and answered by the juyr were proper and constitute a sufficient basis for the conclusion that the property was impressed with a homestead character prior to the execution of the lien instruments. Cameron v. Gebhard, 85 Tex. 610, 22 S.W. 1033; Skiles v. Shropshire, Tex.Com.App., 124 Tex. 462, 77 S.W.2d 872, opinion adopted; Surratt v. Thomas, Tex.Civ.App., 233 S.W.2d 350; Stout v. Sommers, Tex.Civ.App., 28 S.W.2d 247, aff'd Sommers v. Stout, Tex.Com.App., 44 S.W.2d 901; Foley v. Holtkamp, 28 Tex.Civ.App. 123, 66 S.W. 891, error ref.; Espinoza v. Cocke, Tex.Com.App., 276 S.W. 1095; Stevenson v. Wilson, Tex.Civ.App., 130 S.W.2d 317, writ ref.

Appellant contends that the fact that appellees occupied rented premises prior to and at the time of the purchase of the lot in question established as a matter of law the homestead character of the rented premises. It is further contended that since appellees had a homestead a new one could not be acquired until abandonment was established by moving out of the rented premises.

While it is clear that a homestead exemption may be claimed for rented premises, it does not follow that one occupying rented premises may not acquire homestead rights in other property in the absence of evidence that he intended the rented premises to be his homestead. Espinoza v. Cocke, supra; Grimes v. Cline, Tex.Civ.App., 300 S.W. 235, error dism.; Bartels v. Huff, Tex.Civ.App., 67 S.W.2d 411, writ ref.

In the absence of a bona fide purchaser for value before maturity, the mechanics' lien securing a promissory note may not be foreclosed where the contractor failed to substantially perform the lien contract. Continental National Bank of Fort Worth v. Conner, 147 Tex. 218, 214 S.W.2d 928. If the property described in the mechanics' lien contract is homestead property, there can be no recovery on the contract. Paschall v. Pioneer Savings & Loan Co., 19 Tex.Civ.App. 102, 47 S.W. 98; Murphy v. Williams, 103 Tex. 155, 124 S.W. 900; Sommers v. Stout, Tex.Com.App., 44 S.W.2d 901. In the Sommers case the court said:

'In the Murphy Case, supra, our Supreme Court, speaking through Judge Williams, exhaustively reviewed the authorities bearing on the subject and held that the only way that a mechanic's lien could be fixed on a homestead was by full compliance with the provisions of section 50, article 16 of our state Constitution in the making of the contract, and that one who has not substantially performed his part of such contract cannot maintain an action on the contract for its enforcement, though he may sometimes be allowed to recover upon a quantum meruit. Of course, where the recovery is on a quantum meruit, and not on the contract itself, no foreclosure of the lien can be had.'

Appellants contend that the trial court erred in refusing to set aside the jury's answer to Special Issue No. 3 (relating to the market value of the house), or that the answer returned is contrary to the great weight and preponderance of the evidence.

There was expert testimony that had the house been constructed in accordance with the plans and specifications, it would have had a market value of $7.50 per square foot, but that as a result of the defective construction, the value of the house was reduced from 30% to 40% below that value. There were approximately 1880 square feet in the house. The various claimed defects were described in detail. Among other things it was shown that the foundation had settled and cracked; there were cracks in some of the walls; the doors would not open and shut properly; and one brick wall was not erected in a good workmanlike manner. A septic tank was installed instead of connections with the City sewer lines because foundation level of the house was below the level of the nearest manhole cover. If the foundation had been raised to the proper level, it would have been higher than the bottom of the ditch draining the street in front of the house, but as it was constructed it was lower than the ditch and when a sufficiently heavy rain fell the ditch overflowed and water entered the house. The terms of the contract show that a connection with the City sewer system was contemplated. The jury found that the value of the house was $4,250.00, substantially less than the value placed on it by the expert witness. Appellee's testimony on this point is not clear, but, as we construe it, amounts to no more than that he does not like the house and it is worth nothing to him. He moved into it because his money was gone and he had no place else to live. Appellee testified that there was a four foot slope from the front of his lot to the back and that he had filled it in with three to four hundred cubic feet of soil. The house was built on a concrete foundation. He testified...