Lozano v. Meyers

• Decision Date: 28 June 1929
• Docket Number: (No. 1257-5284.)
• Citation: 18 S.W.2d 588
• Parties: LOZANO et ux. v. MEYERS et al.
• Court: Texas Supreme Court

18 S.W.2d 588

LOZANO et ux. v. MEYERS et al.

(No. 1257-5284.)

Commission of Appeals of Texas, Section A.

June 28, 1929.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by G. M. Lozano and wife against E. J. Meyers and others, wherein defendant A. G. Purdy filed a cross-action. Judgment for defendant Purdy on his cross-action was affirmed by the Court of Civil Appeals [8 S. W. (2d) 785], and plaintiffs bring error. Affirmed.

E. T. Yates, of Brownsville, for plaintiffs in error.

Myrick & Coursey, of Harlingen, for defendants in error.

HARVEY, P. J.

This suit was brought by G. M. Lozano and wife against E. J. Meyers, W. R. Mulhausen, R. W. Mulhausen, and A. G. Purdy, seeking to cancel two promissory notes and a purported mechanic's lien, on account of failure of the consideration for which the notes were executed. The notes were executed by Lozano on May 10, 1927, one for $45,000, and the other for $2,000. Purdy, by cross-action, claimed to be holder of the $2,000 note in due course, and sought recovery thereon. The case was tried before the court without a jury.

Judgment was rendered in favor of the Lozanos, canceling the $45,000 note and the mechanic's lien. Personal judgment was rendered against Lozano in favor of Purdy for the amount due on the $2,000 note. Lozano and wife appealed from this part of the judgment. No complaint is made by any of the parties as to that portion of the judgment which canceled the mechanic's lien and the $45,000 note. The Court of Civil Appeals affirmed the judgment of the trial court. 8 S.W.(2d) 785.

The trial court expressly found the following facts:

"On the 10th day of May, A. D. 1927, the plaintiff G. M. Lozano and wife, and children were living on lots numbers one (1), two (2) and three (3) in Block Number Twenty-three (23) in the City of Harlingen in Cameron County, Texas, the same constituted their homestead, and still constitutes their homestead. At that time G. M. Lozano and wife, as owners, and E. J. Meyers and R. W. Mulhausen and W. R. Mulhausen, as Contractors, entered into an agreement whereby the said contractors were to build a Three (3) story brick and concrete structure on said homestead, for a consideration of forty-seven thousand ($47,000.00) Dollars, provided the said contractors could secure a loan and finance the building. G. M. Lozano and wife signed a builder's contract, and acknowledged it, but none of the Contractors signed it. G. M. Lozano at the same time signed One (1) Mechanic's Lien Note for forty-five thousand ($45,000.00) Dollars, payable to E. J. Meyers and W. R. Mulhausen and One (1) Mechanic's Lien note for two thousand ($2,000.00) Dollars, payable to R. W. Mulhausen. The contractors failed to finance the building, and it was never constructed.

"On the 11th day of May A. D. 1927, R. W. Mulhausen took the Builder's Contract and Note of Two thousand ($2,000.00) Dollars to L. H. Thompson, and offered it for sale. Said Thompson read the Contract and Note, and purchased the note from said R. W. Mulhausen for his father and paid value for it. The Builder's Contract was not then recorded; it was recorded the next day.

"On the 27th day of June, A. D. 1927, A. G. Purdy purchased the said note from said Thompson and paid value for it."

The "builder's contract," referred to in the above findings of fact as having been signed and acknowledged by Lozano and wife, reads as follows:

"The State of Texas, County of Cameron:

"Know all men by these presents: That we, G. M. Lozano and Mrs. G. M. Lozano, husband and wife, of Cameron County, Texas, parties of the first part, and E. J. Meyers, W. R. Mulhausen and R. W. Mulhausen of Cameron County, Texas, party of the second part have this day entered into the following contract.

"Whereas, the parties of the first part are desirous of building erecting and constructing certain improvements, to-wit: One three story reinforced concrete and brick building to be built, erected and constructed by party of the second part, upon the following described tract, lot or parcel of land belonging to said parties of the first part, to-wit:—

"Lots one, two and three, of Block No. 82 of the townsite of Harlingen, Cameron County, Texas, as more fully shown on map or plat of said townsite of Harlingen of record in the office of the County Clerk of Cameron County, Texas.

"Now therefore in consideration that the party of the second part has agreed and does by these presents agree with the parties of the first part, that they will make, erect, build and finish in a good, substantial and workmanlike manner, by the 10th day of November, 1927, the said above mentioned improvements on the above described premises, performing or causing to be performed all of the labor in the erection and construction of the same, and furnishing all of the material of whatsoever kind necessary to be used in the erection and construction of the same, and paying all expenses incident to the said labor and furnishing of material; the said improvements to be built of good substantial material and to be erected and constructed strictly...