Lozano v. Thos. W. Blake Lumber Co.

• Decision Date: 24 April 1929
• Docket Number: (No. 8198.)
• Citation: 16 S.W.2d 983
• Parties: LOZANO et ux. v. THOS. W. BLAKE LUMBER CO.
• Court: Texas Court of Appeals

16 S.W.2d 983

LOZANO et ux. v. THOS. W. BLAKE LUMBER CO.

(No. 8198.)

Court of Civil Appeals of Texas. San Antonio.

April 24, 1929.

Appeal from District Court, Cameron County; A. M. Kent, Judge.

Suit by the Thomas W. Blake Lumber Company against G. M. Lozano and wife. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

E. T. Yates, of Brownsville, for appellants.

P. G. Greenwood, of Harlingen, for appellee.

SMITH, J.

G. M. Lozano and wife entered into a contract with R. W. Mulhausen, W. R. Mulhausen, and E. J. Meyers, acting jointly as building contractors, whereby the contractors obligated themselves to furnish the labor and materials and construct a three-story brick building in the city of Harlingen for the Lozanos, for a stipulated consideration of $47,000, for which amount the latter executed and delivered their two notes, to mature in six months, one for $2,000, payable to R. W. Mulhausen, and one for $45,000, payable to W. R. Mulhausen and Meyers. The Lozanos also executed and delivered a mechanic's and materialman's lien upon the property to be improved, to secure the payment of the $45,000 note. The payees then assigned the $45,000 note and lien to T. W. Blake, doing business under the trade-name of T. W. Blake Lumber Company, who thereupon assumed to finance the construction of the building under the contract. The work was begun, but progressed only to the extent of removing existing structures from the premises to be improved, and making some of the preliminary excavations thereon, when it ceased and the project was abandoned by all parties. This preliminary work was done by the contractors at an expense of $569.18, which was advanced to the contractors by Blake. When the project was abandoned Blake demanded of the Lozanos that they reimburse him for said expenditure, and upon their refusal sued them to recover said amount with interest and attorney's fees. The suit was founded upon the builders' contract and mechanics' lien, and was for the debt and for foreclosure of the lien, or, in the alternative, for the debt as upon the quantum meruit. Upon a trial the court denied the prayer for foreclosure, but rendered judgment in favor of Blake against the Lozanos for the amount of the debt. The Lozanos have appealed.

Under the terms of the builders' contract the contractors were obligated to construct the building in question at their own expense, and to complete it at a date coincident with the maturity of the notes ap...