Padgitt v. Dallas Brick & Const. Co.

• Decision Date: 09 May 1899
• Citation: 50 S.W. 1010
• Parties: PADGITT et al. v. DALLAS BRICK & CONST. CO.
• Court: Texas Supreme Court

50 S.W. 1010

PADGITT et al. v. DALLAS BRICK & CONST. CO.

Supreme Court of Texas.

May 9, 1899.

Certified questions from court of civil appeals of Third supreme judicial district.

Action by the Dallas Brick & Construction Company against J. D. Padgitt and others to foreclose a mechanic's lien. From a judgment

of the district court for plaintiff, defendants appealed to the court of civil appeals, which certified a question to the supreme court.

Holloway & Holloway, for appellants. Clark & Clark, for appellee.

BROWN, J.

The court of civil appeals for the Third supreme judicial district has certified to this court the following statement and question: "This is a suit to establish and foreclose a material man's lien. The district court rendered judgment in favor of the plaintiff, and the defendants have appealed. The testimony shows that the First Presbyterian Church of Dallas entered into a contract with A. Watson, by the terms of which the latter agreed to erect a house for the former for the total consideration of $10,425. Watson sublet the contract for a portion of the brickwork to Gary & Reach, agreeing to pay them $3,000 therefor. Gary & Reach purchased brick from the Dallas Brick & Construction Company to be used in complying with their contract with Watson, and Gary & Reach put the brick so furnished them in the building referred to. Gary & Reach, after partially performing their contract, abandoned the same, without completing the work they had agreed to do. At the time they abandoned their contract, and at the time the Dallas Brick & Construction Company served notice of its claim against the building, Watson did not owe Gary & Reach anything; he having paid them more than they were entitled to about the time that they abandoned the contract. It is not shown that Watson made any premature payments to Gary & Reach; that is to say, it is not shown that any payments were made to them in advance of the time stipulated in the contract between them and Watson. Within the time authorized by the statute, the Dallas Brick & Construction Company served notice upon the agent of the First Presbyterian Church of Dallas of its claim for brick furnished for the construction of the church building, which showed a balance due for said brick of $339.55. At the time this notice was served, the First Presbyterian Church of Dallas had not paid to Watson, the contractor, all that was due him on his contract, and owed him at that time more than enough to pay the claim of the Dallas Brick & Construction Company; but, as before stated, Watson did not then owe, and has not since owed, the subcontractors, Gary & Reach, anything. Since...