Mathes v. Williams, 5060.

• Decision Date: 02 October 1939
• Docket Number: No. 5060.,5060.
• Citation: 134 S.W.2d 853
• Parties: MATHES v. WILLIAMS et ux.
• Court: Texas Court of Appeals

134 S.W.2d 853

MATHES v. WILLIAMS et ux.

No. 5060.

Court of Civil Appeals of Texas. Amarillo.

October 2, 1939.

Rehearing Denied November 13, 1939.

Error from District Court, Potter County; W. E. Gee, Judge.

Suit in equity by Roy Mathes against Johne Williams and wife to recover on a mechanic's and materialman's lien note and foreclose such lien and a sequestration lien on certain realty, in which defendants filed a cross-action to recover damages for wrongful sequestration. To review a judgment awarding plaintiff less than the sum sued for and denying foreclosure of the mechanic's and materialman's lien, plaintiff brings error.

Reformed, and affirmed as reformed.

Underwood & Strickland, of Amarillo, for plaintiff in error.

H. H. Cooper, of Amarillo, for defendants in error.

FOLLEY, Justice.

This is a suit by the plaintiff in error, Roy Mathes, against the defendants in error Johne Williams and wife, Carrie Williams, upon a mechanic's and materialman's lien note in the sum of $625, payable in monthly installments, and for foreclosure of the mechanic's and materialman's lien and a sequestration lien upon land and premises situated in Potter County, Texas, and known as Lot 1 in Block 47 of the Miller Heights Addition to the city of Amarillo, Texas. The suit also involves the cross-action of the defendants in error for damages for an alleged wrongful sequestration of the property by the plaintiff in error.

The note and lien were given in connection with a contract dated May 1, 1934, entered into between the defendants in error and R. S. McDaniel wherein the latter as contractor, with materials furnished by W. M. Moore, was to erect a four room house with bath upon the lot above mentioned, the same to constitute the homestead of the defendants in error. The contract provided that the improvements were to be completed within a period of ninety days. It further provided that the contractor was not to supply or install the plumbing, wiring or light fixtures, nor was he to furnish the labor for the painting or papering. The contract also contained the following stipulation: "It is further agreed that a failure to complete said improvements, or failure to complete the same according to contract, shall not defeat said indebtedness and lien, but in such case the indebtedness and lien upon said premises and improvements shall exist in favor of said party of the second part, his heirs and assigns, for said contract price, less such an amount as would be reasonably necessary to complete said improvements according to the said plans and specifications."

The construction of the house was begun about two weeks after the written contract was made, McDaniel having charge of the construction, securing materials and supplies from W. M. Moore. The house was never completed nor was there a substantial compliance with the building contract. On August 3, 1934, while the house was in its unfinished condition, the note and mechanic's lien contract were assigned to the plaintiff in error.

There is no statement of facts in the record, however, the trial court, who tried the case without a jury, filed findings of fact and conclusions of law which we deem sufficient to present the issues hereinafter discussed. The court found that the house was never completed according to the contract; that on August 1, 1934, the floors had not been put in the house; that the roof was not on nor were there any doors or windows in the place; that some work was done after August 1, 1934; that the windows were put in, some of the doors installed and the floor laid; that the roof was put on in the early part of 1935; that none of the sheeting on the inside of the house was put on in a workmanlike manner; that it would cost $300 to complete the contract in a workmanlike manner, exclusive of the plumbing, electric wiring and the labor in painting and papering the house; that the defendant in error, Johne Williams, tried many times to have the house completed, usually making his demands upon W. M. Moore, who always gave as his reason for not completing the building that Williams had not done the "roughing in" for the plumbing; that the contractor could have completed his part of the contract even if no plumbing work were done on the premises; that whether or not the contract was made for the benefit of W. M. Moore or R. S. McDaniel, or both of them, neither of them made any bona fide effort to complete the house within the time or in the workmanlike manner provided in the contract, nor did they, or either or them, ever notify the defendants in error, or either of them, that they would not complete the house; that at some time prior to 1937, the defendant in error, Johne Williams, demanded possession of the premises, but such demand was refused by W. M. Moore in whose possession the key to the house was kept; that early in 1937 Johne Williams entered the house by breaking a window glass and continued to occupy it until he was dispossessed by virtue of a writ of sequestration about December 29, 1937; that at the time the plaintiff in error took the assignment to the note and the mechanic's lien he knew the house in question was being constructed for a home for the defendants in error and that it was not completed, though the time for its completion had then elapsed; that the writ of sequestration was wrongfully sued out and that the defendants in error suffered actual damages of $25 and exemplary damages of $50 by reason of such wrongful sequestration; that the defendants in error had paid $10 on the note; and that Johne Williams owed on the note its face value of $625, with interest as provided therein, less the $300 necessary to complete the building, less the $10 paid on the note and less the $75 damages allowed on the cross-action of the defendants in error. The court further found that Carrie Williams, by reason of her coverture, was not liable on the note, and that Johne Williams, in taking possession of the house did not intend to accept it as a completed job.

The trial court rendered a personal judgment against the defendant in error, Johne Williams, and in favor of the plaintiff in error, in the sum of $412.85 with interest at 10% from date of the judgment, which amount was in accordance with the above findings of fact, but denied the plaintiff in error a foreclosure of the mechanic's and materialman's lien on the property as against either of the defendants in error. From this judgment Roy Mathes prosecutes this writ of error, asserting, first, that the court erred in denying him a foreclosure of the lien.

For a reversal of the judgment upon the court's action in refusing to foreclose the lien, the plaintiff in error relies chiefly upon the authority of the case of Galbraith-Foxworth Lumber Company v. Long et al., Tex. Civ.App., 5 S.W.2d 162, which case deals with a lien upon a homestead and in which a writ of error was refused by the Supreme Court of Texas. In that case the contract contained a provision identical with the provision quoted above from the contract in the instant case to the effect that a failure to complete the improvements should not defeat the indebtedness and lien, but that in such case the indebtedness and lien should exist in favor of the contractor for the contract price, less such amount as would be reasonably necessary to complete the improvements according to the plans and specifications agreed upon. In the Long case, supra, although the improvements were not completed by the contractor and it was necessary for Long to spend $5,369.13 to complete the building according to the specifications, the court allowed a recovery for the contract price less this expenditure and a payment made by Long, and adjudged a foreclosure of the mechanic's lien in favor of the holder of the note and lien for this unpaid balance.

In reply to the contention of the plaintiff in error, the defendants in error rely mainly upon the case of Murphy et al. v. Williams, 103 Tex. 155, 124 S.W. 900, in which it was held that where a building contractor agreed with a husband and wife to build a house upon their homestead for a specified sum and abandoned the work before it was substantially completed he could not maintain an action on the contract nor enforce a lien for the work done, though he might under some circumstances recover a personal judgment for a quantum meruit, "not by force of the contract, but independent thereof". Paschall et ux. v. Pioneer Savings & Loan Co., 19 Tex.Civ.App. 102, 47 S.W. 98, 100, writ denied. The Murphy case announces the following rule (103 Tex. 155, 124 S.W. page 902): "No such lien can exist on the homestead without compliance with the constitutional provision. The debts of this kind to which that provision allows the homestead to be subjected are, `for work and material used in constructing improvements thereon,' and for them only when `contracted for in writing with the consent of the wife,' etc. And the lien to secure such debt is declared to be for `* * * improvements thereon as hereinbefore provided,' which plainly means improvements actually made by the use of the work and material. Both the contract and the employment of the work and material upon the homestead in compliance with it are thus made essential to the lien."

It is our opinion that the Long case ...