M. T. Jones Lumber Co. v. Villegas

• Decision Date: 21 November 1894
• Citation: 28 S.W. 558
• Parties: M. T. JONES LUMBER CO. v. VILLEGAS et al.
• Court: Texas Court of Appeals

28 S.W. 558

M. T. JONES LUMBER CO. v. VILLEGAS et al.

Court of Civil Appeals of Texas.

November 21, 1894.

Error from district court, Webb county; A. L. McLane, Judge.

Action by the M. T. Jones Lumber Company against Joaquin Villegas and others. There was a judgment sustaining a demurrer to the petition, and plaintiff brings error. Affirmed.

A. Winslow, for plaintiff in error. J. O. Nicholson, for defendants in error.

FLY, J.

Plaintiff in error sued Joaquin Villegas, Juan V. Benavides, and Rosendo Garcia for $991.66, and defendants in error answered by a general demurrer, which was sustained, and plaintiff in error refused to amend, and prosecutes a writ of error to this court. The petition, after describing the parties and giving their residences, is as follows: "That heretofore, to wit, on the 30th day of June, 1893, the said defendant Joaquin Villegas, being desirous of having certain valuable improvements made on his storehouse in the city of Laredo, Webb county, Tex., entered into a certain contract in writing with Gaspar Mas, a contractor and builder residing in said city of Laredo, to construct said improvements for the sum of $10,417, which contract provided, among other things, that the sum of $3,776.16 would be retained and held in the hands and possession of the defendant Joaquin Villegas until the said Gaspar Mas had fully completed said building and improvements, and the same was fully turned over and delivered to said defendant Villegas, and accepted by him. The defendant Villegas, well knowing at the time of making and entering into said contract with Mas that he (Mas) was wholly insolvent, and had neither the material nor the money with which to buy it to enable him to construct said improvements, then and there required him, the said Mas, to enter into a good and sufficient bond in the sum of $3,472.33, with Juan V. Benavides and Rosendo Garcia as sureties thereon, payable to him, the said Joaquin Villegas, and conditional, among other things, that the said Gasper Mas would furnish all the material and labor used in the construction of said improvements, which said bond was made, executed, and delivered to said defendant Joaquin Villegas on said 30th day of June, 1893. That this plaintiff, being fully advised of the terms and conditions of said Villegas and Mas' contract for the construction of said improvements, and being fully advised of the terms and conditions of said Mas' bond to said Villegas, was induced, at the special instance and request of said Villegas and Mas, to sell him, the said Mas, lumber and material, to enable him, the said Mas, to construct said improvement for said defendant Villegas; and, plaintiff relying on the terms and conditions of said contract between said Mas and Villegas, and the terms and conditions of said Mas' bond to said Villegas, and certain representations made to plaintiff by said defendant Joaquin Villegas, as hereinafter fully set forth, plaintiff sold and delivered to said Gaspar Mas a large amount of lumber and building material, to wit, $4,966.13, which was to be used, and which in fact was used, by Mas in constructing said improvements for said defendant Villegas. Of this amount the said Mas had at different times repaid plaintiff different and diverse sums of money, so that on the 12th day of December, 1893, said Mas was indebted to plaintiff in a balance of $2,103.76, which said sum was then due and payable. That, on said day and date last mentioned aforesaid, plaintiff, knowing, as it had known all along, that said Mas was wholly insolvent, and being fearful of losing its debt against him, called on defendant Joaquin Villegas for the purpose of ascertaining in what amount he was indebted to said Mas on account of said contract for the construction of said improvements or otherwise, and was informed by the said defendant Villegas that he was then, and would be when said building was completed and turned over to him, indebted to said Mas in the full sum of $3,700, which sum of money he said was more than sufficient to pay all demands against said Mas then due, or to become due, for and on account of lumber, material, labor, and money used and employed in the construction of said improvements; and that he, the said defendant Villegas, would not pay said sum of money, or any part thereof, to the said Mas, or his order, until said improvements were fully completed, turned over, delivered to, and fully accepted by, him the said Villegas, and then not until first notifying plaintiff of the time and place of making said payment. That thereafter, to wit, on the 16th day of December, 1893, said improvements were fully completed, and turned over and delivered to said Villegas, which he fully received and accepted; and he, the said Villegas, then and there paid out and delivered to said Mas all of said sum of $3,700, save and accept the sum of $2,251.09, well knowing at the time of so doing that said Mas was at the time indebted to plaintiff in a balance of $2,103.76, also to French & McComb in a balance of $895, and to Vodrie & Co. in a balance of $1,000, all for lumber, labor, and material used and employed in the construction of said improvements. That on the 13th day of December, 1893, said French & McComb, not being able to collect the amount due them from Mas, instituted their suit in the district court of Webb county, Tex., against Mas, and on the same day garnished said Villegas. That thereafter, to wit, on the 18th day of December, 1893, plaintiff, not being able to collect from said Mas, instituted its suit against him in the district court of said Webb county, and on the same day ran its writ of garnishment against said Villegas. That the said French & McComb recovered their judgment for the full amount of their said claim against...