National Sur. Corp. v. Dabney

• Decision Date: 15 September 1955
• Docket Number: No. 3282,3282
• Citation: 282 S.W.2d 70
• Parties: NATIONAL SURETY CORPORATION, Appellant, v. Ernest DABNEY, Appellee.
• Court: Texas Court of Appeals

Page 70

282 S.W.2d 70

NATIONAL SURETY CORPORATION, Appellant, v. Ernest DABNEY, Appellee.

No. 3282.

Court of Civil Appeals of Texas, Waco.

Sept. 15, 1955.

Naman, Howell & Boswell, Waco, for appellant.

Bradley & Geren, Groesbeck, for appellee.

TIREY, Justice.

Appellee brought this action against R. B. Potashnick, a public road contractor, on a debt for labor and material furnished to the contractor in the building of public highways, and joined as defendant, National Surety Corporation, to establish a lien and recover on the indemnity bond executed under the provisions of Arts. 5472a and 5472b-1, Vernon's Ann.Civ.Stats.

The cause was tried without the aid of a jury and at the close of the testimony the court dismissed the action against the road contractor on the ground that he had not been personally served, and entered judgment in behalf of appellee against the Surety Company for the full amount of the claim, to-wit, $492.53, and the additional sum of $250 attorney's fees, and the decree provided for interest at the rate of six per cent per annum, and for costs of court. The Surety Company seasonably excepted to the judgment and has perfected its appeal to this court.

The judgment is assailed on five points. They are substantially: (1) the court erred in entering judgment in behalf of appellee against the Surety Company, for the purchase price of the automobile parts and equipment set out in Exhibit A of plaintiff's pleading because such automobile parts and equipment constituted tools and equipment of the contractor used for the prosecution of the work and as such were not items which could be made the subject of a lien under the provisions of Chapter 17 of the General Laws of the State of Texas, enacted by the 39th Legislature; (2) the action being asserted against the Surety Company to establish a lien and obtain a judgment against defendant on an indemnity bond executed by the Surety Company under Arts. 5472a and 5472b-1, supra, the court erred in entering judgment for plaintiff against the Surety Company, because plaintiff failed to sustain the burden of proof to establish such lien which would entitle him to judgment because (a) there is no evidence of probative value that the labor, parts and equipment, claimed to have been furnished by plaintiff to the contractor, went into the construction of the highway or were consumed or completely depreciated in the performance of the construction work; and (b) there is no evidence of probative value that the labor, parts and equipment, claimed to have been furnished the contractor by plaintiff, were reasonably necessary for the prosecution and completion of the highway construction; (3) the court erred in sustaining the objection of plaintiff to questions propounded to plaintiff by defendant regarding the validity of charges made for items of labor, parts and equipment contained in the sworn account; (4) plaintiff failed to sustain the burden of proof incumbent upon him to establish that a contract existed between the contractor and the State of Texas, or its political subdivisions, for the construction of public improvements, upon which plaintiff furnished labor, parts and equipment for the prosecution of same; (5) plaintiff, not being entitled to recover the full amount which he sought to establish as a lien under the terms of Chap. 17, General Laws of the State of Texas, 39 Leg., he was not entitled to attorney's fees under the terms of Art. 5472b-1.

Appellee's first and only counter point in reply to appellant's points is: 'Where defendant bonding company, with full knowledge of the facts, executed bond as surety for road contractor who was nonresident of this state, under Articles 5472a and 5472b-1, knowing that nonresident had no property in this state, and made bond for the purpose of permitting the road contractor to withdraw money against which plaintiff had fixed a lien, as provided by law, and road contractor, after withdrawing the money, left the state with said money, justice dictates that the bonding company should be liable on said bond.'

Appellee went to trial on his first amended original petition. Pertinent to this discussion appellee alleged that he was engaged in the garage business in Limestone County and while operating his garage he did certain repair work and furnished certain materials for trucks, automobiles and equipment to the road contractor who was engaged in building certain farm to market roads in Limestone and Hill counties, and that such contractor was indebted to him for labor and services rendered and for materials furnished at the contractor's request. He duly itemized his account and made the statutory affidavit thereto and attached it to his pleading as Exhibit A. He further alleged that the Surety Company had executed a release bond under the terms of Arts. 5472a and 5472b-1, and that in so doing it became obligated to pay his account. He further alleged that he was forced to employ attorneys to represent him, and alleged a reasonable fee to be the sum of $250, and he prayed that he have judgment against the contractor and the Surety Company for these amounts and costs of court and for foreclosure of his lien as provided in the foregoing statutes.

The appellant in its answer set up substantially that Potashnick was an individual and was a nonresident of the State of Texas, and the cause of action being an action in personam as distinguished from an action in rem, that Potashnick was not properly before the court since he is a resident of Missouri and only nonresidence service had been obtained upon him outside of the State of Texas. The Surety Company further answered to the effect that the action is one to establish a debt and foreclose lien on the proceeds of a highway construction contract, such lien being asserted for labor and materials furnished Potashnick on the highway construction job; that plaintiff's petition sets out charges for certain labor furnished for the repair of automobiles and trucks in the sum of $163.50, and other charges for materials and parts furnished for automobiles and trucks in the sum of $326.03, and a reasonable attorney's fee in the sum of $250. National Surety Company averred that appellee is not entitled to a lien for parts or materials furnished as set out in its account and that payment of such charges is not indemnified by the bond executed by the Surety Company. It prayed that the court take no further cognizance of the suit.

At the close of the evidence the court overruled the Surety Company's motion for judgment and entered judgment in behalf of the appellee against the National Surety Company for the sum of $492.53, being the amount of the account sued for and $250 attorney's fees, with interest at 6 per cent per annum on the entire amount from the date of the judgment and costs. In the judgment we find this recital: 'It appearing to the court that R. B. Potashnick is a nonresident of the State of Texas and resides in the State of Missouri and was served with nonresident notice in the State of Missouri, that service is not valid as to him, the said R. B. Potashnick, and he is hereby dismissed from this cause, and plaintiff shall take nothing as against R. B. Potashnick.' The Surety Company excepted to the judgment entered and perfected its appeal to this court.

Going back to points 1, 2 and 3 urged by the appellant, we believe that the cause will have to be reversed and remanded under these three points for reasons hereinafter briefly noted. While plaintiff was on the stand, the following proceedings were had 'Q. Mr....