John Maynard Lumber Co. v. Brazell

• Decision Date: 23 April 1930
• Docket Number: No. 3345.,3345.
• Citation: 28 S.W.2d 877
• Parties: JOHN MAYNARD LUMBER CO. v. BRAZELL et al.
• Court: Texas Court of Appeals

28 S.W.2d 877

JOHN MAYNARD LUMBER CO. v. BRAZELL et al.

No. 3345.

Court of Civil Appeals of Texas. Amarillo.

April 23, 1930.

Rehearing Denied June 4, 1930.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Consolidated suits by V. T. Brazell and another against the John Maynard Lumber Company and others, and by the John Maynard Lumber Company against C. B. Vick and J. S. Marshall and wife. From an adverse judgment, the John Maynard Lumber Company appeals.

Affirmed.

S. E. Fish and Earl Wyatt, both of Amarillo, for appellant.

F. H. McGregor, F. A. Cooper, J. E. Anderson, and Underwood, Johnson, Dooley & Simpson, all of Amarillo, for appellees.

HALL, C. J.

On August 25, 1926, J. S. Marshall and wife entered into a contract with C. B. Vick, which provides that Vick is to furnish the labor and necessary material for the construction of an apartment house for Marshall and wife for the recited consideration of $12,100. The consideration is evidenced by three promissory notes executed by Marshall and wife on the same day and delivered to Vick. Brazell & Nichols, as subcontractors, were to do the necessary painting on the building. J. T. Saunders and Jess Whatoff were also subcontractors undertaking to do certain portions of the work. On the day of their execution, the notes of Marshall and wife to Vick were assigned by the payee to J. N. Maynard individually, who a few days later assigned them, together with the mechanic's lien given to secure their payment, to the John Maynard Lumber Company. The house was constructed, the Marshalls moved into it, and Brazell & Nichols, who had not been paid for painting it, filed suit numbered 5394 in the district court of Potter county against Vick, the Marshalls, Maynard, and the Maynard Lumber Company. Later the Maynard Lumber Company filed suit numbered 5475 in the district court against the Marshalls and Vick, praying for judgment on two of the Marshalls' notes.

There is no order in the record consolidating these two suits, but from the briefs of the parties it appears that they were tried together and judgment entered as in one case. Ninety-three pages of the hundred and fifty-nine page transcript are taken up in setting out the pleadings of the parties in these two suits. We presume that the cases were consolidated, as that fact seems to be conceded by all parties, but the rule, where cases are consolidated, is to order all parties to replead, and the trial court, as a part of said order, should fix the position of the respective parties in the consolidated case. 1 Tex. Jur. p. 682, § 64; Avery v. Popper (Tex. Civ. App.) 45 S. W. 951; Ralston v. Aultman, Miller & Co. (Tex. Civ. App.) 26 S. W. 746; Wright v. Chandler (Tex. Civ. App.) 173 S. W. 1173.

The failure of the trial court to order the parties to replead has resulted in great confusion in so far as the statement of the issues made by the pleadings is concerned, but, since the appellant company presents no issue here with reference to the sufficiency of the pleadings, it becomes unnecessary to make a detailed statement of them. Suffice it to say that Brazell & Nichols, who filed suit No. 5394 against Vick, the Marshalls, Maynard, and the Maynard Lumber Company to recover the amount alleged to be due them for painting, subsequently filed their first amended original petition in said cause, in which they also made Saunders and Whatoff defendants.

In reply to the amended petition, the defendants Maynard and the Maynard Lumber Company answered by general demurrer, several special exceptions, and a general denial. The original petition of the lumber company against Marshall and Vick to recover upon two of the Marshall notes and foreclose the mechanic's lien was answered by Marshall, who pleaded homestead; that he made no contract with any one except Vick, and further that, at the time the notes were executed, Vick, Maynard, and the lumber company agreed in writing to accept two certain lots in Amarillo in payment of one of the notes; that he made application to a loan company for a loan of $9,000, to be secured by a lien on the lot and improvements covered by the mechanic's lien contract, and that this loan was to extend the time of payment of the $9,000 mechanic's lien note; that such loan was procured at the instance and request of the lumber company; that it was agreed that the deed of trust securing the loan company was to be placed in escrow and not to be delivered until all bills of every kind and character incurred by Vick had been paid; that, in violation of this agreement, the lumber company transferred and delivered the $9,000 note and trust deed to the loan company, whereby the lumber company became liable and bound to Marshall to fully complete the building according to the plans and specifications.

In response to special issues submitted, the jury returned, in effect, the following verdict:

(1) That the contract between Marshall and Vick for the erection of the building involved in this suit was made by Vick for the use and benefit of the Maynard Lumber Company.

(2) That, in consideration of the assignment by Vick to John Maynard of the Marshall notes, the John Maynard Lumber Company agreed that it would pay for or furnish all the materials and labor necessary for the construction of the building in question, according to the plans and specifications.

(3) That, when Vick assigned the notes and materialman's lien to Maynard, the amount of material and money which the lumber company was to furnish in consideration for said notes was sufficient material and money to complete the building according to contract.

(4) (In response to this issue, the jury was unable to state in money the amount of material, labor and funds furnished by the lumber company.)

(5a) That said Saunders filed his lien statement of record.

(5b) That, at the time Saunders gave notice, Marshall had $259.11 of the contract price in his hands.

(5c) That Saunders was entitled to $159.11.

(6) That the sum of $210 was due Jess Whatoff for building mantles.

(7a) That Vick furnished material paid for with his private funds.

(7b) The value of the materials furnished by Vick is $500.

(8) That, prior to the time the premises were occupied by Marshall, Maynard agreed that he would see that the improvements were completed.

(9) That the extras which went into the building and were not covered by the original contract amounted to $148 in value.

(10) That the reasonable value of the items deducted from the original contract and plans with Marshall's consent amounted to $165.

(11) That exclusive of the items deducted from the plans, the reasonable cost of additional labor and materials necessary to complete the building in accordance with the contract, is $714.05.

(12a) That Brazell & Nichols did not furnish all the material and labor necessary to complete the painting as provided in the contract.

(12b) That it would take $500 more to complete the painting according to contract.

(13) That Vick accepted the painting job done by Brazell & Nichols as completed.

Based upon this verdict, the court rendered a judgment against the John Maynard Lumber Company in favor of Brazell & Nichols for the sum of $1,100, with interest; in favor of Saunders for $159.11; in favor of Vick for $500, and further decreed that Marshall should convey the lot in Amarillo to the Maynard Lumber Company in payment of one of the notes. The judgment further cancels the two Marshall notes sued upon, and decrees a recovery in favor of Marshall against the lumber company in the sum of $360.49; that none of the other parties in the two suits recover anything.

By the first nine propositions, the appellant lumber company insists that there is no legal evidence, and that the evidence introduced is insufficient to sustain the verdict and judgment in the particulars set out in the several propositions.

The remaining eight propositions attack the verdict and findings upon practically the same grounds. We find that in setting out the testimony under these various propositions the appellant does not quote the testimony of all of the witnesses introduced upon the various issues.

Court of Civil Appeals rule No. 31 requires that a correct and accurate statement of the record bearing upon the respective propositions should be made by the appellant, and, where the error relates to the admission or rejection of evidence, there shall be quoted the full substance of the evidence admitted or rejected. Kansas City, M. & O. Ry. Co. v. Whittington & Sweeney (Tex. Civ. App.) 153 S. W. 689.

We have before us, however, four briefs filed by the several appellees, and from them, supplemented by reference to the statement of facts, we are able to dispose of these various contentions, notwithstanding the failure of appellant's brief to comply strictly with the rule.

The first contention to be considered is that there is no legal evidence to show that either John Maynard or the Maynard Lumber Company were other than purchasers and assignees of the mechanic's lien notes or that the contract between Marshall and wife and Vick was made for the benefit of the Maynard Lumber Company. In this connection, the appellees insist that Vick was not in fact the real contractor, and that the contract, though made in his name, was for the use and benefit of John Maynard and the lumber company.

The relation of principal and agent may be established by circumstances. 2 Tex. Jur. 506, § 109; Daugherty v. Wiles (Tex. Com. App.) 207 S. W. 900; Bradstreet Co. v. Gill, 72 Tex. 115, 9 S. W. 753, 2 L. R. A. 405, 13 Am. St. Rep. 768.

John Maynard testified that he was the president and general manager of the John Maynard Lumber Company, and was the active manager of the company throughout all of the transactions involved in the two cases which were tried together. The Maynard Lumber Company alleges the financial irresponsibility of Vick. John Maynard testified that he learned that Marshall...