Security Trust Co. of Houston v. Roberts

• Decision Date: 19 February 1919
• Docket Number: (No. 40-2694.)
• Citation: 208 S.W. 892
• Parties: SECURITY TRUST CO. OF HOUSTON v. ROBERTS et al.
• Court: Texas Supreme Court

208 S.W. 892

SECURITY TRUST CO. OF HOUSTON v. ROBERTS et al.

(No. 40-2694.)

Commission of Appeals of Texas, Section B.

February 19, 1919.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by L. H. Roberts against R. E. Trabue, doing business under the name of the Carthage Ice & Light Company, and others. Judgment for plaintiff was affirmed by the Court of Civil Appeals (166 S. W. 12), and the Security Trust Company of Houston brings error. Reversed and remanded.

Baker, Botts, Parker & Garwood, of Houston, for plaintiff in error.

Brooke & Woolworth, of Carthage, for defendants in error.

SADLER, J.

L. H. Roberts brought this suit in the district court of Panola county to recover from R. E. Trabue, owner of and doing business under the name of the Carthage Ice & Light Company, to recover $853.88, being a balance owing under a contract of employment as a mill operator and laborer in said ice and light plant, and to foreclose a laborer's lien against Trabue, the Ice & Light Company, the Security Trust Company, Thos. D. Bonner, as receiver, and J. L. Norman, on certain machinery, house, and lot designated as the ice and light plant.

Roberts had been in the employ of Trabue, working at a planing mill, and on July 1, 1911, Trabue owed him $772.61 for labor in the planing mill. On that date they entered into a contract whereby Roberts was to work at the ice and light plant, keeping the machinery in repair, assisting in making ice, and doing general work as a laborer in connection with and in said plant, at a salary of $900 per year, to be due and payable at the end of the year. Under this contract he worked at the ice and light plant until about the 15th day of February, 1913, when he was prevented from further working by reason of the Security Trust Company taking possession of the ice and light plant under a conveyance or transfer or under some character of process. On February 28, 1913, Roberts prepared in duplicate an affidavit and account against Trabue under articles 5644 and 5645, Vernon's Sayles' Statutes. One copy was delivered to Trabue, and it is alleged that the original was filed with the county clerk of Panola county, but there is nothing in the statement of facts to show such filing.

In this affidavit it is alleged that there was a balance due of $853.88, which accrued on the 1st day of January, 1913, and on the 15th day of February, 1913, but that Roberts agreed with Trabue that payment of said amount should be made on February 1, 1913, and in the affidavit he sought to fix a laborer's lien on certain machinery in the ice plant, being one engine, two boilers, and one alternator. In the petition he alleges that on July 1, 1912, the amount due for the preceding year for labor in the ice and light plant was, by agreement between himself and Trabue, extended so as to fall due on July 1, 1913, and the evidence supports this allegation. Under an agreement made on July 1, 1911, Roberts was to run an account in a store owned by Trabue, and this account for purchases was to be applied as follows: First paying the $772.61, and then being applied upon the other indebtedness due to him by Trabue by reason of his labor in the ice plant. The evidence showed that on July 1, 1912, Trabue owed Roberts some amount on the salary for 1911-12, which was extended so as to fall due July 1, 1913, and also that some amount accrued January 1, 1913. The court gave judgment for the debt, and a foreclosure of the laborer's lien on the machinery and real property. The Court of Civil Appeals affirmed the judgment (166 S. W. 12), and the cause is before us on writ of error.

Opinion.

We are presented with two questions for decision: First, whether the Security Trust Company is in a position to contest plaintiff's asserted lien against the property involved. The Court of Civil Appeals held that it was not. It appears from the pleading, the conclusion of fact, and the judgment of the court that the Security Trust Company was in possession of the property, holding same under some character of conveyance or transfer or by reason of some process. It clearly appears that the Security Trust Company had such possession of the property as made it advisable, if in fact it was not necessary, for plaintiff to make it a party to the suit and seek a foreclosure against it. Its possession was antagonistic and in opposition to plaintiff's asserted lien. Judgment was rendered against it, foreclosing the lien on the property which was in its possession. In virtue of this judgment, its possession of the property and its claim thereto was jeopardized by plaintiff's asserted lien and the judgment of the court. Such being the position occupied by the Security Trust Company in this litigation, it should not be deprived of its right to protect its possession and claim by calling in question the validity of plaintiff's lien and by seeking relief from the judgment of the court.

The next question presented is with reference to the validity of the lien asserted by the plaintiff. On account of the very uncertain condition of the pleadings and evidence as shown by this record, it is difficult to arrive at a satisfactory conclusion upon the pleadings and facts.

Suffice it to say that it appears from the record that the amount of the salary for the year ending July 1, 1912, and which accrued on that date, was by agreement extended so as to fall due July 1, 1913. It is further apparent from the affidavit to the account, and by which plaintiff sought...