Johnson v. Griffiths & Co.
| Decision Date | 25 February 1911 |
| Citation | 135 S.W. 683 |
| Parties | JOHNSON et ux. v. GRIFFITHS & CO. et al. |
| Court | Texas Court of Appeals |
Action by Griffiths & Co. against M. W. Johnson and wife and action by Sumner & McCreight against M. W. Johnson and others consolidated. From the judgment, Johnson and wife bring error. Reformed and affirmed.
W. J. J. Smith and K. R. Craig, for plaintiffs in error. White & Sergeant, W. H. Flippen, and T. B. McCormick, for defendants in error.
This is a suit instituted by Griffiths & Co. October 9, 1908, against Mrs. M. W. Johnson, formerly Mrs. E. M. Bounds, and M. W. Johnson, her husband, joined pro forma, upon four promissory notes in the sum of $2,075 each, dated December 9, 1907, and payable one, two, three, and four years after date, respectively, payable to the order of L. C. McAllister and J. M. Sides, bearing interest at the rate of 8 per cent. per annum from date, interest payable semiannually as it accrues, and stipulating for 10 per cent. attorney's fees; and each note further providing for a mechanic's lien upon certain land, and each note further stipulating that failure to pay said note or any installment of interest when due should, at the election of the holder thereof, mature the same, and that said note should at once become due and payable and subject to foreclosure proceedings under said mechanic's lien. The notes were executed by Mrs. E. M. Bounds. A contract for mechanic's lien was at the same time executed by Mrs. Bounds upon a certain lot situated in the city of Dallas, Tex., being 100×210 feet off the S. W. portion of a one-acre tract conveyed to E. M. Bounds by J. N. Cochran, the field notes of which are set out in the lien and plaintiffs' petition. Subsequent to the execution of the notes and lien, Mrs. Bounds married the plaintiff in error, M. W. Johnson. The plaintiff alleged default in the payment of the first installment of interest on the first note, and that it had elected to declare the entire debt due, and prayed for a judgment for a foreclosure of the lien on the property referred to. It was alleged that the notes had been indorsed and transferred by L. C. McAllister and J. M. Sides to Griffiths & Co., without recourse. Plaintiff prayed also for the recovery of $112.50, with interest, for insurance premium paid by plaintiff on the property, and alleged that said notes were given in consideration and in part payment for the erection of a two-story, frame, shingle roof building, to be erected by McAllister & Sides at their own expense and cost, they to furnish all the material and build the same at their own expense as per an existing contract and specifications entered into by and between said Mrs. E. M. Bounds, then a feme sole, and the said McAllister & Sides, said residence to be erected upon the lot above referred to.
The defendants, plaintiffs in error, pleaded in abatement that the suit was premature, for that the same is a suit upon certain promissory notes given by defendant Mrs. M. W. Johnson, payable to the order of L. C. McAllister and J. M. Sides, for the erection and completion of a certain residence in the city of Dallas, Tex., according to the contract and specifications therefor made between the said Mrs. M. W. Johnson and the said McAllister & Sides; said notes therefor being transferred by said McAllister & Sides to Griffiths & Co. That had plaintiff credited certain sums which, it is alleged, should have been credited upon said notes and interest thereon at the time this suit was instituted, there would have been nothing due and owing to said plaintiff, and nothing at the time to justify plaintiff in declaring the whole sum due and payable, and that in addition thereto, in order to prevent said suit, the defendants tendered and offered to pay plaintiff all interest due and owing upon said notes at and before the time this suit was instituted; wherefore defendants say that there has been no default upon the part of defendants to authorize the plaintiffs to declare the whole sum due and payable. The plea in abatement was sworn to.
This plea was followed by a general denial and also by the plea of failure, or partial failure, of consideration by reason of defects in the house constructed, failure to build the house in conformity with the plans and specifications, and departure in the plans and specifications in the matter of material and workmanship, itemizing each particular in which the contract was violated or not complied with in the erection and finishing of said house; defendants alleging that the notes were given in consideration that McAllister & Sides were to furnish all material and build and erect and fully complete the residence, and that said notes were executed and delivered, with the mechanic's lien on the lot described in plaintiff's petition, as additional security; and that said notes were by McAllister & Sides transferred to Griffiths & Co. before any of said work had been done or materials furnished, with the understanding and agreement at the time made between said McAllister & Sides and T. W. Griffiths that said T. W. Griffiths should furnish the lumber and certain portions of the materials for the construction and completion of said house, and be charged to McAllister & Sides periodically as the work progressed according to the contract in the sum of $8,300, and that when said McAllister & Sides had completed said residence according to the contract and specifications, then the said notes should be in full force and effect for the full amount; that plaintiff's right to demand and defendants' liability on said notes was dependent upon the erection and completion of said house according to the contract and specifications therefor, and not solely upon plaintiff's payment of the amount of said notes to McAllister & Sides.
Defendants further alleged that plaintiff did not pay the full amount of $8,300 to McAllister & Sides, but retained and still has in his hands $1,263. Defendants claimed $5 per day after March 1, 1908, for failure to complete said house on that day as stipulated in the contract. Plaintiff filed a supplemental petition, setting out a statement of account between McAllister & Sides and defendants, as well as between plaintiff and defendants, attached thereto as Exhibit A, the contract between Mrs. E. M. Bounds and McAllister & Sides, giving a mechanic's lien on the property, as also the contracts and builder's agreement between J. M. Sides and L. C. McAllister for the erection of the house. To this defendants filed a supplemental answer.
Sumner & McCreight also filed a suit against McAllister & Sides and M. W. Johnson and Mrs. M. W. Johnson for the recovery of $356.55 for material and labor furnished to McAllister & Sides by plaintiffs in the erection of the building by McAllister & Sides for the defendants Johnson, alleging that plaintiffs had filed in the office of the county clerk of Dallas county an affidavit and bill of particulars fixing a lien upon the property described, being the same property hereinabove referred to upon which the building was to be erected, and praying for a judgment against McAllister & Sides and the defendants M. W. and Mrs. M. W. Johnson for the recovery of the debt and foreclosure of the lien on the property. Plaintiffs attached as an exhibit the contract between Mrs. E. M. Bounds and McAllister & Sides, and also a statement of their account, showing a balance of $356.55. To this petition the defendants pleaded general denial and a plea of failure of consideration, and further answered that at the time plaintiffs attempted to fix a mechanic's lien on the property, defendants were not indebted to McAllister & Sides in any sum, and denying plaintiff's right to recover anything in the way of a judgment or to have any lien established or foreclosed on the property. In that suit McAllister & Sides answered, pleading over against defendants M. W. and Mrs. M. W. Johnson the sum of $2,202.40, with an itemized statement of extras on the building attached as Exhibit A. By agreement of all parties, the suit of Sumner & McCreight against McAllister & Sides et al. was consolidated with the cause of Griffiths & Co. v. M. W. and Mrs. M. W. Johnson.
The case was tried before a jury and submitted on special issues,...
To continue reading
Request your trial
-
Freeman v. Freeman
...Tex.Civ.App., 70 S.W. 567, no writ history; Robinson v. Collier, 53 Tex.Civ.App. 285, 115 S.W. 915, no writ history; Johnson v. Griffiths & Co., Tex.Civ.App., 135 S.W. 683, no writ history; Drummond v. Lewis, Tex.Civ.App., 157 S.W. 266, no writ history; American Surety Co. v. Thach, Tex.Civ......
-
Houston & T. C. R. Co. v. Lindsey
...Co. v. Davis, 141 S. W. 1019; M. B. of America v. Jordan, 167 S. W. 794, 795; Guerra v. S. A. S. P. Co., 163 S. W. 669; Johnson v. Griffiths & Co., 135 S. W. 683; St. L. & S. F. Ry. Co. v. Sizemore, 53 Tex. Civ. App. 491, 116 S. W. 403-408; S. A. & A. P. Ry. Co. v. Barnett, 27 Tex. Civ. App......
-
City of Charlotte v. Atlantic Bitulithic Co.
... ... Co., 57 Tex.Civ.App. 529, 122 S.W. 947; ... Tucker v. Williams, 2 Hilt. (N.Y.) 562; Taulbee b ... Moore, 106 Ky. 749, 51 S.W. 564; and Johnson v. Griffiths ... & Co. (Tex. Civ. App.) 135 S.W. 683 ... In this ... connection it may be observed, as the court observed in the ... ...
-
John V. Schaefer, Jr., & Co. v. Ely
...v. Williams, 2 Hilt. (N. Y.) 562; Taulbee v. Moore, 106 Ky. 749, 752, 51 S. W. 564, 21 Ky. Law Rep. 378; Johnson et ux. v. Griffith & Co. et al. (Tex. Civ. App.) 135 S. W. 683. He may give his opinion as to the difference in value of a vessel as repaired, and what her value would have been ......