Murphy v. Williams

• Decision Date: 09 February 1910
• Citation: 124 S.W. 900
• Parties: MURPHY et al. v. WILLIAMS.
• Court: Texas Supreme Court

124 S.W. 900

MURPHY et al. v. WILLIAMS.

Supreme Court of Texas.

February 9, 1910.

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

Suit by Charles B. Williams against John H. Murphy and others. A decree for complainant was affirmed by the Court of Civil Appeals (116 S. W. 412), and defendants bring error. Affirmed in part, and reversed and rendered in part.

Seymour Thurmond and W. S. Smallwood, for plaintiffs in error. Turney & Burgess, S. P. Weisiger, and Jones & Jones, for defendant in error.

WILLIAMS, J.

This writ of error was granted to bring up for review a judgment of the Court of Civil Appeals affirming a judgment of the district court establishing and foreclosing in favor of defendant in error a lien upon the homestead of the plaintiffs in error. A motion to dismiss the writ of error has been filed in this court on the ground that the petition and bond given for the writ of error from the district court to the Court of Civil Appeals misdescribe the judgment in giving its date as April 4th, when its true date, as shown by the record, is April 1, 1908. All such objections to irregularities in the proceedings which do not render them void and entirely defeat the jurisdiction of the appellate court are waived by the failure to move to dismiss the appeal or writ of error in the Court of Civil Appeals. Williams v. Wiley, 96 Tex. 153, 71 S. W. 12; Logan v. Gay, 99 Tex. 605, 90 S. W. 861, 92 S. W. 255. It may be further said that the objection, if made in time, would not have been good. The petition and bond give the style and number of the case, the parties to it, and set out the judgment in hæc verba, leaving no question that the one intended is that found in the record. Southern Pacific Ry. Co. v. Stanley, 76 Tex. 419, 13 S. W. 480. The facts of the case will be found fully stated in the opinion of the Court of Civil Appeals. Murphy v. Williams, 116 S. W. 412. Those which are to control our decision may be condensed.

The plaintiffs in error made a contract with one Arend by which the latter, for the stipulated price of $3,200, agreed to build a house upon a lot which was the homestead of the Murphys, who agreed to, and did, execute to Arend their three promissory notes to cover such price. At the same time it was understood that Arend, in order to get money to enable him to build the house, should assign the notes to Williams, and a stipulation to that effect was inserted in the contract which further provided that the lien, which it gave upon the homestead and upon three other lots as security, could only be released by Williams. This contract was properly executed by Murphy and wife in accordance with the constitutional provision. The notes were at once assigned to Williams who paid Arend $2,300 upon them. Arend entered upon and did a large part of the construction, expending for labor and material more than $2,100, but, without any reason or excuse stated, abandoned the work before it was completed, so that there was no substantial performance of his undertaking. Murphy thereupon demanded of Williams that he complete the building, and, after his refusal to do so, caused the work to be done at a cost of $1,550. Williams sought by this action a judgment for the full amount of the notes, and for a foreclosure of the lien for that amount upon the homestead as well as upon the other lots, for all of which the judgment before us was rendered except that it allows a lien upon the homestead for only the sum of $1,650, the difference between the contract price and the cost to Murphy of completing the building left unfinished by Arend. It is this last feature of the judgment that is attacked as erroneous in the specifications in the application for writ of error upon which it was granted.

The Court of Civil Appeals conceded, upon the authority of Paschall v. Pioneer Savings & Loan Co., 19 Tex. Civ. App. 102, 47 S. W. 98, that Arend's unexcused abandonment of the contract would have precluded him from recovering any judgment upon it. The principle applied in that case, which is clearly sustained by the authorities, is that one who has not substantially performed his part of a contract cannot maintain an action for its enforcement although he may sometimes be allowed to recover upon quantum meruit. Childress v. Smith, 90 Tex. 610, 38 S. W. 518, 40 S. W. 389. From that principle the Court of Civil Appeals, in Paschall v. Pioneer Savings & Loan Co., deduced the further proposition that, since no lien can exist in this state upon the homestead for improvements upon it except through a contract therefor joined in by the husband and wife, no lien can be enforced upon such property in favor of a party to such a contract, who, on account of his failure to perform, is disentitled to have it enforced. That proposition was recognized as correct by this court in the refusal of a writ of error, and it is in accord with most authorities elsewhere. The facts in the case referred to differed from those in this case in some respects. There a house was completed by the contractor but it differed substantially in character, as well as in value, from that contracted for. The owners had contracted for one thing, and another had been furnished. Here the work and material, so far as done and supplied, were in compliance with the contract. The work was merely left unfinished, and when Murphy voluntarily completed the building that which had been contracted for was obtained. From this it seems to have been held by the trial court that the lien attached pari passu with the doing of such work and the putting in of such material as the...