Pool v. Schulte

• Decision Date: 17 February 1882
• Docket Number: Case No. 1430.
• Citation: 56 Tex. 287
• Court: Texas Supreme Court
• Parties: WILLIAM POOL v. WEDEMEYER & SCHULTE.

56 Tex. 287

WILLIAM POOL

v.WEDEMEYER & SCHULTE.

Case No. 1430.

Supreme Court of Texas.

Feb. 17, 1882.

ERROR from Galveston. Tried below before the Hon. Wm. H. Stewart.

John H. Sandford brought suit on the 21st of May, 1874, against Wm. Pool, to recover $6,000, alleged to be due him as the contract price agreed to be paid him for supplying all material and doing all work in the construction and completion of a dwelling house for said Pool on lots 5, 6 and 7, in block 264, in Galveston, and also for “extra” work thereon the sum of $1,957.50. He claimed “that the work and material furnished by him in his business as a mechanic gave him a lien upon the dwelling and lots.”

On the 2d of April, 1875, C. H. Moore & Co. filed their petition of intervention, claiming a lien on the building and lots for material which was used in the construction of the building, of the value of $802.85.

On the 16th of April, 1875, Wedemeyer & Schulte, as

artisans and painters, filed their petition of intervention, wherein they claimed the sum of $405 from Wm. Pool for painting the house, asserting a lien.

To the petition of Sandford, Wm. Pool pleaded general demurrer, special exceptions to all that part of his petition asserting a lien, the general issue, and especially that he entered into a contract in writing (which was set forth) with Sandford, by which he undertook to furnish all material and build a house on the lots, which were the homestead of Pool, he being a married man and head of a family, with a wife and children occupying the same; that the house was to be completed, material furnished, work to be done, including the painting thereof, in first-rate mechanical style, for the price of $6,000; that he, Pool, had overpaid Sandford to the extent of amounts set forth in schedule, aggregating $6,662.84, and pleaded the excess paid in reconvention.

To the interventions of Wedemeyer & Schulte and C. H. Moore & Co., Pool pleaded demurrers and special exceptions, general denials, and specially that he had paid to Sandford the full amount due to him in good faith before any claim by them was made, or notice duly served on him of any such demand in their favor.

At the spring term, A. D. 1875, the court overruled all the demurrers of Pool, and submitted the cause to a jury upon special issues, and upon the verdict returned by them the court rendered a judgment in favor of Pool against Sandford for $741.71 and costs, and a judgment in favor of Wedemeyer & Schulte for $405, and in favor of C. H. Moore & Co. for $802.85, against Pool, and also decreed a lien in favor of the intervenors respectively on the lots and improvements, and ordered a sale thereof. Pool moved for a new trial, which was overruled, to which Pool excepted, and appealed from the judgments pronounced in favor of said intervenors to the supreme court, and the supreme court, at January term, A. D. 1880, reversed the same and remanded the case. 52 Tex., 621.

The cause came on again for trial before the district court at the December term, 1881, upon the issues joined between the intervenors, Wedemeyer & Schulte, and C. H. Moore & Co., the defendants in error, and Wm. Pool, the plaintiff in error, which was determined by the judge upon the facts and the law, a jury being waived. The court rendered a judgment in favor of Wedemeyer & Schulte for $597.90, and that they have a lien upon the interest of Wm. Pool on the property to secure said debt, and in favor of C. H. Moore & Co. for $867 for materials furnished by them to the defendant in the construction of improvements on the lots, and that they have a lien on Wm. Pool's interest in the lots and improvements to secure $146.89 of that amount, and foreclosing liens and decreeing that an order of sale be issued to the sheriff of Galveston county to seize and sell all the interest of Wm. Pool in the property, and apply the proceeds thereof to the satisfaction of the liens, and the balance, if any, to pay over to Pool, and that the purchaser have a writ of possession, which the sheriff was directed to execute by placing the purchaser in possession. Pool moved for new trial, which was overruled, and filed petition for writ of error.

The petition of intervention of Wedemeyer & Schulte alleged that they were mechanics; that about the ____ day of November, 1873, at the request of John H. Sandford, a contractor, then employed by Pool to erect a house on lots 5, 6 and 7, in block 264, in Galveston, owned by said Pool, they furnished the necessary material and painted said building, doing the work required by the agreement between said Sandford and themselves; that, in consideration of the work done and material supplied, Sandford promised, and became liable, to pay them $405, which he refused to pay; that during the progress of the work, being distrustful of Sandford, they were about to quit, when Pool requested them to complete the work, and in consideration thereof promised to pay them $405; that, relying on such promise, they proceeded to finish the painting, believing that defendant would pay or cause them to be paid; that defendant was indebted to them $405, which he refused to pay; that their account for such work was made out, verified by oath, and the same recorded in the office of the district clerk of Galveston county, on the 18th of March, 1874, and a copy thereof duly served, accompanied by a description of the house and lots upon which, as mechanics, intervenors claimed a lien to secure the payment of their debt. They prayed to be admitted to intervene and for judgment for their debt and foreclosure of lien.

To this petition of intervention Pool excepted generally for insufficiency, and specially to all that part of it which claimed a lien on the property. The court overruled the exceptions.

Pool pleaded specially that he had paid to Sandford the full amount due to him in good faith before any claim by them was made on him; denied all liability as to their alleged debt and lien.

The following account was read in evidence by Wedemeyer & Schulte:

“GALVESTON, TEXAS, March 3, 1874.

Mr. William Pool--

TO WEDEMEYER & SCHULTE, Dr.

HOUSE AND SIGN PAINTERS, GLAZIERS, GRAINERS AND PAPER-HANGERS.

+---------------------------------------------------+
                ¦To painting house, out and inside, two coats¦$405.”¦
                +---------------------------------------------------+
                

The affidavit was to the effect that the affiant, F. Wedemeyer, was partner in the firm of Wedemeyer & Schulte; that Wm. Pool was justly indebted to the firm in the sum of $405 for painting a house belonging to Pool, as per annexed account, which is correct, and owing to affiant's firm; that the work was performed on the building situated on lots 5, 6, and 7, in block No. 264, in Galveston, Texas; that said firm, as mechanics and artisans, have a lien on said lots and improvements for the payment of their debt; that said work was done at the request and with the approval of Pool. This affidavit was made and subscribed before D. Wakelee, clerk of the county court of Galveston county, on the 18th of March, 1874, who adds the following certificate under his hand and seal: “The foregoing annexed mechanic's lien was filed for record in this office March 18, 1874, and recorded March 27, 1874.” To the introduction of all which Pool objected on the ground that the same was not admissible to fix a lien, nor as garnishing process, under the allegations of intervenors' petition; that the same was not such a bill of particulars as the statute required to be made; that it was uncertain as to the elements of any contract or the terms thereof supposed to exist between the intervenors and Pool, nor sufficiently certain or specific for the purpose of fixing a lien under the statute; which objections were overruled and the evidence admitted.

The testimony was conflicting in regard to a promise by Pool to pay the account of $405 for painting.

The following facts were admitted by written agreement of counsel on file:

1. The contract price for the building of defendant, erected by plaintiff, was $6,000. The contract was in writing and was not recorded.

2. The value of extra work done thereon by plaintiff, which was authorized and accepted by defendant, was $781.

3. The value of the material furnished by C. H. Moore & Co. was $802.85, and was sold and charged by them to Sandford.

4. But the defendant had knowledge of the furnishing of material by C. H. Moore & Co., on or about November 4, 1873, and was then indebted to plaintiff in the sum of $1,200.

5. The work done by Wedemeyer & Schulte amounted to $405.

6. Defendant paid plaintiff before March 18, 1874, $6,212, and on April 12th paid him $85.

Willie & Cleveland, for plaintiff in error.

I. That the court erred in overruling the defendant's exceptions to the petition of intervention of Wedemeyer & Schulte. This is relied on as a proposition. Pasch. Dig., 7112; Pool's case, 52 Tex., 621;Tinsley v. Boykin, 46 Tex., 598;Ferguson v. Ashbel & Simpson, 53 Tex., 245;Sens v. Trentune, 54 Tex., 218;Lee v. Phelps, Id., 367;Lee v. O'Brien, Id., 635;Holman v. Criswell, 13 Tex., 38; Gould on Plead., ch. 3, sec. 64; ch. 4, sec. 15, p. 176; sec. 29, p. 182.

II. The court erred in overruling defendant's objections to the introduction in evidence of the exhibit consisting of the account of Wedemeyer & Schulte and affidavit thereto and certificate of authentication, and record thereof offered by Wedemeyer & Schulte in support of their claim of mechanic's lien, as set forth in defendant's bill of exceptions thereto. This is relied on as a proposition. (Same authorities as above.)

III. The court erred in decreeing and establishing a mechanic's lien in favor of Wedemeyer & Schulte. This assignment is relied on as a proposition.

IV. Wedemeyer & Schulte, having bestowed their material and labor by contract with Sandford, who was under contract with Pool to do the work and furnish the material, and Pool having paid Sandford the full contract price...