Jones v. Ford

• Decision Date: 09 October 1883
• Docket Number: Case No. 1493.
• Citation: 60 Tex. 127
• Parties: J. E. JONES v. H. B. FORD.
• Court: Texas Supreme Court

60 Tex. 127

J. E. JONES

v.H. B. FORD.

Case No. 1493.

Supreme Court of Texas.

Oct. 9, 1883.

APPEAL from Harrison. Tried below before the Hon. A. J. Booty.

The appellee alleged in his petition that he was the owner in fee simple, on the 10th of March, 1881, of lots 3 and 4 in the Williams addition to the city of Marshall; that on that day he entered into a contract with Jones for the erection of four tenement houses on the lots, including outhouses, fences, wells, etc., for which he obligated himself to pay $4,250; afterwards, by a verbal agreement, an additional room was to be added to each of the houses, for which he also obligated himself to pay the further sum of $500; that appellant agreed himself to finish the first one of the houses the 10th day of April, another the 25th of April, and another the 15th day of May, and the last the 10th day of June, 1881; that appellant erected on the lots, under the contract, four tenement houses, complete, except in certain specified particulars; that appellee paid to appellant $3,548 in cash and $218.72 in material for the houses previous to July 15, 1881, which was paid as the work progressed; that Dahmer & Logan had served on appellee on July 29, 1881, an account for $902 for lumber furnished appellant with which to build the houses, and that the liability of appellee to pay the same had been fixed under the statute; that Lake & McFarlin, on the 8th day of August, 1881, had also fixed the liability of appellee for $99 for material furnished appellant, which sums appellee had been compelled to pay; that after these liabilities were fixed, J. H. Van Hook & Son, on the 11th day of August, 1881, also served on appellee an attested account for $1,183 for material furnished appellant with which to build the houses; that payments of cash amounting to $3,548 were made to Jones in consequence of his fraudulent representations that such amounts were due to him for work done, when they were not due; that Jones held the houses in his possession by force, and refused to allow plaintiff to have possession, claiming that the balance due on such contract should be paid to him; that Van Hook & Son had recorded a lien in the office of the county clerk of Harrison county on the property; that appellant also claimed a lien for a balance claimed to be due him; that three of the houses had been sufficiently completed to admit of being rented on the 1st of July, 1881, and that rental value of same was $25 each per month; that appellant was holding the property for the purpose of compelling appellee to pay him whatever might be due on the contract, instead of paying it to the parties who had fixed appellee's liability for it as material men; that he had refused to complete the houses, and held them since the 1st of July, 1881; a writ of sequestration was prayed for, and that the amount due, if any, from appellee to Jones be fixed, and ordered to be paid to the party entitled thereto; that the property be delivered to appellee, and that appellee recover of appellant damages for his failure to complete the work, which he claimed to be the contract price, less the fair and reasonable price of completing the work, and that the same be taken into account in estimating the amount due from him to appellant, and for general relief.

A general demurrer to the petition was overruled.

On the trial defendants objected to the reading of the deposition of Miss Neva Armstrong because the notice served on them contained the name of Nettie Armstrong instead, whereupon the plaintiff offered to prove that defendants knew that Miss Neva Armstrong was intended, which was not denied, and the deposition was read.

The jury returned the following verdict on the issues as presented in the petition and charge of the court: “We, the jury, find for the plaintiff against J. E. Jones the sum of ($370.98) three hundred and seventy and 98-100 dollars.”

H. McKay and A. Pope, for appellant.

James Turner and T. P. Young, for appellee.

WILLIE, CHIEF JUSTICE.

The appellant Jones insists that his general demurrer to appellee's pleadings should have been sustained: 1. Because it was a misjoinder of actions to seek a recovery upon a moneyed demand in a suit for the possession of real estate. 2. Because it was a misjoinder of parties to include such a suit against himself with a suit against his co-defendant, to cancel a lien claimed by the latter upon the property, the possession of which was in controversy.

Waiving all question as to appellant's right to raise these objections on general demurrer, we hold that there was no misjoinder, because the several causes of action grew out of the same transaction, and were so intimately blended with each other that it was almost impossible to have a complete settlement of one without involving a consideration of the others. Jones claimed that he was entitled to possession of the property because Ford had not fully paid the contract price for constructing buildings upon it. Ford claimed that he had not only fully paid Jones, but had also paid others for brick, etc., which Jones was under the contract bound to perform. For these reasons he claimed the right to possess the premises and to recover money from Jones on the very account and in the very transaction in which the latter claimed it from him. If the suit had been for possession only, and the defendant had set up that there was a balance due him under the contract, and that it was to secure...