Kuteman v. Lacy

• Decision Date: 24 January 1912
• Parties: KUTEMAN et al. v. LACY et al.
• Court: Texas Court of Appeals

144 S.W. 1184

KUTEMAN et al. v. LACY et al.

Court of Civil Appeals of Texas.

January 24, 1912.

Rehearing Denied February 28, 1912.

Appeal from District Court, Parker County; J. M. Patterson, Judge.

Action by H. W. Kuteman and others against John W. Lacy and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Stennis & Wilson, for appellants. F. O. McKinsey, John J. Hiner, and W. L. Dean, for appellees.

KEY, C. J.

Appellants brought this suit against John W. Lacy, Ples Gafford, and the Odd Fellows Lodge at Lipan, Tex., seeking to recover for a bill of lumber and the foreclosure of a mechanic's lien. The case was submitted to the court without a jury, and judgment rendered for the defendants, and plaintiffs have appealed.

The trial court filed the following conclusions of fact and law:

"Findings of Fact.

"(1) I find: That early in the year 1909 the defendant Ples Gafford and the Independent Order of Odd Fellows of Lipan, Tex., entered into a written contract with the defendant John Lacy to construct for them a two-story building on a lot belonging to defendant Gafford in the town of Lipan, Hood county, Tex. That in making said contract said lodge was represented by a committee, which it had duly appointed.

"(2) That said committee was appointed by the defendant lodge from its own members, and was composed of George Helm and four others, and they were fully empowered to enter into a contract with some contractors for the construction of a building to be owned by said lodge and Ples Gafford, the said Ples Gafford to own the lower story and the defendant lodge the upper story, to be used by it as a lodge. Said committee had authority, in connection with Ples Gafford, who represented his own interests, and who was also a member of said building committee, to look after the interests of said lodge and supervise the building thereof and to pay for same, for which the lodge would become liable. Said committee was known as the building committee, and had authority to borrow money, if necessary, on account of and for said lodge, and to receive and accept said building when finished, and that Ples Gafford and the five members appointed by said lodge constituted and were known as the `Building Committee.' The price agreed to be paid by said committee for said building was $3,250, of which Ples Gafford was to pay $1,750 and the lodge $1,500, said payments to be made as the work progressed. The said Lacy was to furnish all material and complete the house according to the plans and specifications, and to deliver the same when so completed to said committee.

"(3) I find that the bill of lumber and material for which plaintiff sues was sold by plaintiff to the defendant John W. Lacy, with the understanding that the same was to be paid for from time to time as the same was delivered, and the work on said building progressed. I find that said George Helm, one of the building committee, was employed by the defendant Lacy to assist in hauling the lumber and material for the construction of said building, from Weatherford to Lipan, and that, after he had hauled several loads, W. A. Chew, one of the plaintiffs, and manager for said company, requested the said Helm to see Lacy and get him to send him some money in payment for the material he had furnished. I find that on the 21st of September, 1909, when Helm had returned for another load of lumber, he, in conversation with said W. A. Chew, said that the building committee was holding back $800 or $1,000, which was 25 per cent. of the contract price, and that they would see that plaintiffs were paid. That the said Helm thereby meant the building committee would see plaintiffs paid, and the plaintiffs so understood it; that, when such statement was made by the said Helm, about one-third of the lumber and materials for the construction of said house had been furnished; that the plaintiff Chew relied upon said statement of Helm and furnished the balance of the lumber and material without taking any steps to fix a lien on the building and looked to and expected said committee to see that plaintiffs' bill was paid; that the plaintiffs, under said contract, furnished the materials set out in their petition and as described in the account filed with the county clerk of Hood county, Tex., on or about the 27th day of November, 1909, and that said material and lumber was used in the construction of the building mentioned and described in plaintiffs' petition.

"(4) I find that on the 25th of November, 1909, plaintiffs gave written notice to the defendants of the amount due them and for what the same was due, as required by the civil statutes of Texas. I find that at the time of said notice the said Lacy had abandoned said contract without...