Huddleston v. Nislar
| Decision Date | 21 May 1934 |
| Docket Number | No. 4231.,4231. |
| Citation | 72 S.W.2d 959 |
| Parties | HUDDLESTON et al. v. NISLAR et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Crosby County; Homer L. Pharr, Judge.
Action by O. L. Nislar and others, doing business under the firm name of the Nislar Hardware Company, against G. E. and C. M. Huddleston, operating under the firm name of Huddleston Construction Company. Judgment for plaintiff, and defendants appeal.
Reversed and rendered.
W. P. Walker, of Crosbyton, for appellants.
Vickers & Campbell, of Lubbock, for appellees.
This is an appeal by G. E. and C. M. Huddleston, operating under the firm name of Huddleston Construction Company, from a judgment obtained against them in the district court of Crosby county for the sum of $583.95, by O. L., Joe N., and Mrs. J. N. Nislar, doing business under the firm name of the Nislar Hardware Company.
The appellants on May 4, 1932, entered into a written contract with the highway department of the state of Texas, by the terms of which they agreed, at their own proper cost and expense, to improve road No. 137 in Lubbock county in accordance with the specifications, proposals, and plans attached to and made a part of the contract. No plans or specifications appear in the record. A bond was given by appellants to guarantee the performance of their contract, but as the sureties are not parties to this litigation, the provisions thereof are not material.
J. N. and H. B. Jordan, composing the firm of Jordan Construction Company, were made defendants in the suit, and appellees secured a judgment against them by default for the sum of $721.42, and no complaint is made thereof.
The Jordan Construction Company submitted to appellants an offer in writing in which they proposed to do the topping and furnish the rock for improving said road, but the proposition was refused because the financial statement furnished and the bond tendered by said company were not satisfactory to appellants.
Anticipating that such contract would be closed, the Jordan Construction Company rented from J. W. Bartholow of Dallas, a rock crusher, and moved it from Lamb county to the Yellow House Canyon in Lubbock county, where they opened a quarry. Whether it was opened before the above proposition was refused by appellants is not shown, but while they operated the quarry they produced screenings or chats, and No. 1, No. 2, and No. 3 stone which they sold to purchasers who desired any of such grade of products. They endeavored to sell rock for road construction to the Panhandle Construction Company, but did not succeed.
The said company received the following order from the appellants:
Accompanying this order was a letter of the same date stating:
In compliance with this order the Jordan Construction Company crushed and delivered to appellants 4,552 yards of rock, which was approved and accepted and used in the construction of said road. The appellants paid for the rock so received by discharging, at the request of the Jordan Construction Company, various obligations due the creditors thereof, but appellees were not included among the creditors appellants were requested to pay.
The Jordan Construction Company, after receiving the order from appellants and during the time they operated the quarry, purchased from appellees necessary dynamite, caps, fuses, shovels, and picks, the items of which aggregated $721.42. Said company became involved financially, failed to pay the rental for the crusher, and was forced to discontinue operation at said quarry. The appellants then rented the crusher from J. W. Bartholow and operated the quarry until sufficient rock had been obtained to complete their road contract.
The Jordan Construction Company defaulted in the payment of the account sued on, and the appellees filed their verified itemized account with the county clerk and notified the highway department and appellants of their claim, to establish which this suit was instituted.
On the trial, in response to a peremptory instruction, the jury found that the appellants were due the appellees the sum for which, with interest thereon, judgment was rendered.
The appellants challenge as error the action of the court in directing a verdict and rendering judgment thereon against them, claiming that the undisputed testimony shows that they made no contract, either express or implied, with appellees to pay for the material they furnished to the Jordan Construction Company, and also shows that said construction company was a materialman and not a contractor or subcontractor in contemplation of law, and no lien attached in favor of appellees on the money due appellants for the improvement of the road.
The material involved in this suit was sold by appellees to, and charged to, the Jordan Construction Company. No negotiations for the purchase thereof were had by appellees with appellants, and the only communication between them relative thereto occurred after approximately all of such material and tools had been used by, and the operation of the quarry abandoned by, the Jordan Construction Company; and if appellants are liable for such material such liability is imposed by law.
The Jordan Construction Company quarried and delivered to appellants at the side of the road being improved rock that conformed to the specifications of the state engineer, but said company performed no labor on said road.
The Constitution and statutes have created what are called involuntary liens in favor of "mechanics, artisans and material men of every class" (Const. art. 16, § 37), which includes original contractors, subcontractors, materialmen, laborers, etc., who furnish labor or material, machinery, fixtures or tools, to erect or repair any house, building or improvements whatever to any private owner or his agent, if the proceedings prescribed for fixing such lien are followed. Articles 5473 to 5479 (Vernon's Ann. Civ. St.) inclusive, provide the procedure if appellees had desired to avail themselves of the Mechanic's Lien Law and fix a lien against the property of the Jordan Construction Company. Ball v. Davis, ...
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In re Lp
...such material without performing any work or labor installing or putting them in place.” Id. (citing Huddleston v. Nislar, 72 S.W.2d 959, 962 (Tex.Civ.App.-Amarillo 1934, writ ref'd)). The parties have stipulated that Halgo is a “materialman” but not a “mechanic” or “artisan.” [Finding of F......
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