Pool v. Sanford

• Decision Date: 24 February 1880
• Citation: 52 Tex. 621
• Parties: WILLIAM POOL v. JOHN H. SANFORD ET AL.
• Court: Texas Supreme Court

52 Tex. 621

WILLIAM POOL

v.JOHN H. SANFORD ET AL.

Supreme Court of Texas.

Feb. 24, 1880.

APPEAL from Galveston. Tried below before the Hon. A. P. McCormick.

Suit by John H. Sanford against the appellant, Pool, alleging that in July, 1873, William Pool, the defendant, “contracted with the plaintiff to pay him $6,000, in consideration that the plaintiff would supply the material and erect a dwelling-house for defendant on lots 5, 6, and 7 in block 204, in Galveston, owned by the defendant, in accordance with plans and specifications in possession of the defendant; that plaintiff, in pursuance of that contract, at defendant's special request, furnished all the lumber and other material, and performed all the work required in the construction and completion of the building, &c.

Plaintiff also claimed, for extra work, the additional sum of $1,957.50, according to an account made an exhibit. Sanford admitted payment of $3,160, and that he had, at different times, given orders on defendant which may have been paid, but amounts were unknown, and that he was willing to allow all such and other just credits.

Plaintiff claimed “that the work and materials furnished by him in his business as a mechanic gave him a lien upon the said dwelling and lots.” There was no allegation in the petition that the contract was recorded, nor any that the bill of particulars or account was recorded. He prayed for judgment for balance due him, and for foreclosure of his lien.

On the 2d of April, 1875, C. H. Moore & Co. filed their petition as intervenors, claiming a lien on the building and lots, alleging that they had “sold to William Pool material which was used in the construction” of the dwelling-house of the value of $802.85, setting forth an itemized account, praying for judgment for that amount and foreclosure of their lien. There was no allegation in the petition that the intervenors' itemized bill of particulars was recorded, or that there was any record of the lien claimed, nor was there any proof of a record of lien.

On the 16th of April, 1875, Wedemeyer & Schulte, as artisans and painters, filed their petition of intervention, alleging that, at the request of Sanford, the plaintiff, a builder and contractor then employed by defendant to erect the building, they furnished the material and did the painting, inside and out; that thereby “the plaintiff became liable and promised to pay them $408 therefor”; that plaintiff refused to pay them; that during the progress of the work the defendant promised to pay intervenors the sum aforesaid for their work, wherefore defendant was indebted therefor; that the work was done on the dwelling on said lots owned by defendant; that the account for the work was made out and verified by oath as required by law, and the same was duly recorded in the office of the district clerk of Galveston county on March 18, 1874, and a copy thereof, duly certified, served on defendant, and that said account was accompanied with a description of the house and lots upon which, as mechanics, intervenors claimed a lien to secure the debt which they claimed against the defendant. They asked for judgment for the money claimed, and for foreclosure of the lien.

Defendant Pool filed a general demurrer to plaintiff's petition, and special exceptions to all that part asserting a lien; pleaded the general issue, and specially, that defendant did enter into a contract in writing, (which was set forth,) with plaintiff, by which he undertook to furnish all material and build a house for defendant on the lots, which were then, and still are, the homestead and place of residence of defendant, he being a married man, with wife and children occupying the same; that the house was to be completed, in all respects, in first-rate mechanical style, for the price of $6,000; that defendant had overpaid the plaintiff to the extent of amounts set forth in schedule, aggregating in amount $6,662.84, and pleaded in reconvention the excess paid; he also pleaded in reconvention for damages for unskillful performance of the work, and for breach of the contract in other respects specially set forth, &c.

To the interventions of C. H. Moore & Co. and Wedemeyer & Schulte, Pool demurred generally, and specially to their claim of lien, and answered by general denial, and specially, in substance, that defendant had paid to plaintiff the full amount due him in good faith, before any claim of plaintiff's lien was ever made, or notice duly served on defendant; denied all liability as to the alleged debts and liens, reiterated the homestead exemption, and reasserted the matters set forth in his defense to plaintiff's demand.

The court overruled the several demurrers of the defendant, general and special, and submitted the cause to the jury upon general charge, and also upon two sets of issues, one marked as submitted by plaintiff and intervenors, the other by the defendant, which the jury were required to answer by their verdict.

The jury found, on the general charge, for the plaintiff, in the sum of $483.45, and upon the special issues submitted as follows:

1. What amount is due plaintiff from defendant on the written contract? Ans.-- Nothing was due plaintiff on written contract.

2. Was the work claimed by plaintiff to be extra work, in fact extra work, and not embraced or included in the terms of the written contract? Ans.--The following we consider as extra work done on the house, to wit: Ceiling outside house, wainscoting, paneling on house and upper gallery, difference in the thickness of chimney.

3. What was the value of the extra work done by plaintiff, if any was done? And was the extra work authorized by defendant, or was plaintiff induced by defendant to do the extra work, or did defendant subsequently accept and approve of the extra work? Ans.--Value of extra work done, as enumerated in answer number 2, $781, which was authorized and accepted by defendant.

4. Were the materials furnished as claimed by C. H. Moore & Co., intervenors, and were they used in the construction and building of the improvements mentioned and specified in intervenors' claim of C. H. Moore & Co.? Ans.--The materials furnished by the intervenors, C. H. Moore & Co., were used in construction of the building of the improvements mentioned and specified in the intervenors' claim of C. H. Moore & Co.

5. What was the value of the material furnished by Moore & Co.? Ans.-- The value of the material furnished by C. H. Moore & Co. we find to be $802.85.

6. Did defendant (Pool) at any time have notice of the furnishing of materials by C. H. Moore & Co.? At what time? Ans.--The defendant (Pool) did have notice of the furnishing of material by Moore & Co. on or about November 4, 1873.

7. Was defendant (Pool) indebted to Sanford at the time of said notice? In what amount? Ans.--The defendant (Pool) was indebted to Sanford on or about November 4, 1873, about $1,200.

8. Was any material furnished by Moore & Co., to be used in the construction of Pool's house, after the notice to Pool? What amount in value? Ans.--There were materials furnished by Moore & Co. after November 4, 1873, to be used in the construction of Pool's house.

9. Did defendant, by acts or words, induce or lead intervenors C. H. Moore & Co. to believe that he would withhold the amount then due Sanford by him until C. H. Moore & Co.'s claim was settled? Ans.--He (Pool) did lead C. H. Moore & Co. to believe that he would withhold the amount then due Sanford until the claim of C. H. Moore & Co. was settled.

10. Has the amount claimed to be due C. H. Moore & Co. been paid by Sanford or Pool? Ans.--The amount due C. H. Moore & Co. has not yet been paid.

11. Was the work done by intervenors Wedemeyer & Schulte as claimed by them? What was the value of the work? Ans.--The work was done done by Wedemeyer & Schulte as claimed by them, amounting to $405.

12. Has the claim of Wedemeyer & Schulte been paid by Pool or Sanford? Ans.-- The claim of Wedemeyer & Schulte has not yet been paid.

13. Was the work done on the improvements mentioned and set forth in the intervention claim of Wedemeyer & Schulte? Ans.--The work was done as claimed by Wedemeyer & Schulte.

14. Did defendant have notice of the claim of Wedemeyer & Schulte? If so, at what time? Ans.--The defendant did have notice of the claim of Wedemeyer & Schulte, November, 1873.

15. Was defendant indebted to Sanford at the time of his notice of Wedemeyer & Schulte's claim? Ans.--Defendant was indebted to plaintiff at the time of his notice of Wedemeyer & Schulte's claim.

16. What amount of work, if any, was done by Wedemeyer & Schulte on Pool's house after notice to Pool of their claim? Ans.--The amount of work done by Wedemeyer & Schulte on Pool's house after notice to Pool of their claim amounted to $355.

The following issues were submitted on behalf of the defendant by the court to the jury, and responses thereto are given, to wit:

1. What amount, if anything, is owing by Pool to Sanford on the contract in writing? Ans.--There is nothing due Sanford by Pool on the written contract.

2. Did Sanford do any extra work, at the request of Pool, which was not fairly included by the contract? Ans.--Sanford did do extra work at the request of Pool.

3. If he did, what was it and what its value? Ans.--The following was extra work done, with its value attached: Ceiling outside house, $390; wainscoting, $291; paneling lower and upper gallery, $30; difference in thickness of chimney for range, $70,--$781.

4. How much had Pool paid to Sanford previous to the 18th of March, 1874? Ans.--Pool paid to Sanford, before March 18, 1874, $6,212.55, and on April 12, 1874, paid $85.

5. How much, if any, did Pool overpay Sanford, and what is the excess, if any, due from Sanford to Pool? Ans.--Pool overpaid Sanford, on written contract, $297.55.

6. Were the lots on which the house was erected by Sanford the homestead of Pool, and was he then and now a married man and head...