Shepherd v. Woodson Lumber Co.

• Decision Date: 29 June 1933
• Docket Number: No. 1404.,1404.
• Citation: 63 S.W.2d 581
• Parties: SHEPHERD et ux. v. WOODSON LUMBER CO.
• Court: Texas Court of Appeals

63 S.W.2d 581

SHEPHERD et ux. v. WOODSON LUMBER CO.

No. 1404.

Court of Civil Appeals of Texas. Waco.

June 29, 1933.

Error from District Court, Leon County; S. W. Dean, Judge.

Action by Woodson Lumber Company against M. A. Shepherd and wife. Judgment for plaintiffs, and defendants bring error.

Affirmed.

Seale & Seale, of Centerville, and M. L. Bennett, of Normangee, for plaintiffs in error.

Bowers & Bowers, of Caldwell for defendants in error.

GALLAGHER, Chief Justice.

This suit was instituted by defendants in error, Woodson Lumber Company, a copartnership, against plaintiffs in error, M. A. Shepherd and wife, Mrs. Minnie Shepherd, to recover the balance due on two notes executed and delivered by said Shepherd to said lumber company, and to foreclose a mechanic's lien given by said Shepherd and wife to secure the same upon lots 1 and 2 in block 39 of the town of Normangee. The parties will be designated as in the trial court. The notes sued on were for the sum of $350 each, and were due, respectively, December 1, 1926, and December 1, 1927. On November 12, 1930, M. A. Shepherd, without the joinder of his wife, entered into a written contract with plaintiffs, in which the maturity of both of said notes was extended to November 1, 1931, and the validity of the lien securing the same was recognized and such lien extended. Certain credits on the first of said notes were admitted. Defendants alleged that the property on which plaintiffs sought to foreclose their lien was the homestead of defendants both at the time of the execution of said lien and at the time of trial; that, prior to the execution of said notes and contract, plaintiffs and said Shepherd agreed that plaintiffs would employ him to construct certain lumber sheds, and would pay him not less than $350 nor more than $500 therefor; that said sheds were to be constructed in the fall of the year 1926, or as soon thereafter as plaintiffs might determine; that such agreement was a material inducement to enter into the mechanic's lien contract sued upon; and that but for such agreement they would not have done so. They further alleged that the amount to be paid defendant Shepherd for the construction of said sheds was to be approximately the same as the amount of said first note, and that such note was to be discharged by his labor, as contemplated by the terms of said agreement, and the remainder due him, if any, credited on the second note. They further alleged that plaintiffs failed to construct said sheds and failed to permit defendant Shepherd to discharge said first note by his labor, as they had agreed to do, and that the consideration for said note had failed.

The case was tried by the court without a jury and judgment rendered in favor of plaintiffs against defendants for the sum of $999 and for foreclosure of mechanic's lien on said lots to secure the same. Judgment was also rendered in favor of plaintiffs against defendants for the further sum of $99.90 as attorney's fees, but foreclosure of lien to secure the same was denied. The court incorporated in said judgment a specific finding that defendants were not entitled to any credit on the notes sued on "by reason of the alleged contemporaneous verbal agreement to build certain sheds and receive credit for the labor performed thereon by the defendant," and ordered and decreed that they take nothing on such plea.

Opinion.

Defendants present a proposition in which they complain of the action of the court in refusing to allow them a credit on the notes sued on herein because of the breach of an alleged contemporaneous agreement by plaintiffs to employ defendant Shepherd to construct said lumber sheds. Defendant Shepherd testified that J. R. Woodson, a member of plaintiff firm, agreed with him, in substance, that plaintiffs would furnish the lumber to build defendant's house, and that he might pay therefor by labor in constructing certain lumber sheds for them, and that he should take the matter up with Mr. Wright, their local manager; that he relied on said agreement, and was induced thereby to purchase from them the lumber to build his house and to execute and deliver to them the notes and mechanic's lien contract sued on herein. He further testified that, about the time of the execution of said notes and lien contract, Mr. Wright submitted to him plans for the building of two lumber sheds, that he offered to do the work on the basis of 15 per cent. of the cost, or to work with his son thereon by the day, and that Mr. Wright said both propositions were about alike, and that it did not make any difference to him. Said sheds were never built. Defendant Shepherd testified that he was always ready and willing to build the same, and that he "could have made on that amount of work something like $600.00." Said Woodson testified at the trial and denied such agreement. He further testified that Shepherd merely asked him if they were going to build and that he told him that they would give him work if there was anything to do. He further testified that Shepherd had done all the carpenter work which the firm had to do, and had been frequently paid therefor in cash. Mr. Wright died before this controversy arose.

The finding of the court in the judgment as above recited was one of law. No specific findings of fact were made. The finding of the court in favor of plaintiffs being general, every issuable fact must be considered found in their favor if there is any evidence to support such a finding. In passing upon the sufficiency of the evidence to sustain each such finding, we must view the same in the light most favorable thereto, rejecting all evidence favorable to the opposite contention and considering only the facts and circumstances which tend to sustain such finding. Hines v. Kansas City Life Ins. Co. (Tex. Civ. App.) 260 S. W. 688, 690, pars. 2 and 3, and authorities there cited; Smith v. Patterson (Tex. Civ. App.) 294 S. W. 984, 986, par. 3; Schulte v. Republic Supply Co. (Tex. Civ. App.) 297 S. W. 667, par. 1; Wingart v. Baxter (Tex. Civ. App.) 30 S.W.(2d) 522, 526, par. 5, 531, par. 10; Brotherhood of Railroad Trainmen v. Smith (Tex. Civ. App.) 36 S.W.(2d) 771, 772, par. 2. The testimony with reference to the existence of such verbal contemporaneous agreement was sharply conflicting. Under the rule above announced, the trial court must be deemed to have found in favor of plaintiffs on such issue.

The disposition of defendants' proposition under consideration need not, however, rest on such ground alone. There is neither pleading nor testimony charging that plaintiffs perpetrated any fraud upon the defendants in inducing them to purchase said lumber or in procuring the execution and delivery of the notes and mechanic's lien contract securing the same which were given in consideration of such purchase. Said writings constituted an unconditional promise to pay in money the amount specified therein. A contemporaneous parol agreement on the part of plaintiffs that either or both said notes should be paid only in labor to be performed by Shepherd was in direct conflict with the terms thereof. Pertinent to the issue of law under consideration, we quote from Helmke v. Prasifka (Tex. Civ. App.) 17 S.W.(2d) 463, 465, par. 1 (writ refused), as follows:

"Of course, there is a distinction between a parol condition affecting the delivery of a written obligation and one affecting its payment. This distinction is not always clearly apparent from the provisions of the condition. But, when the distinction is ascertainable, and is determined, the rules concerning its enforceability thus ascertained are clearly distinguishable. For a parol condition affecting the delivery of a written obligation is enforceable by virtue of our Negotiable Instruments Act (section 16, art. 5932), whereas a parol condition affecting the payment of a delivered written instrument is not enforceable if it operates to add to, take from, or vary, the terms of the written agreement. The latter rule is not affected by the statute, and is universally enforced. Chalk v. Daggett (Tex. Com. App.) 257 S. W. 228; Adams v. Johnson (Tex. Com. App.) 298 S. W. 265; Waters v. Byers Bros. & Co. (Tex. Civ. App.) 233 S. W. 572; Adams Nat. Bank v. Stone (Tex. Civ. App.) 284 S. W. 989; Crooker v. National Phonograph Co. (Tex. Civ. App.) 135 S. W. 647; Whiteman v. Bishop (Tex. Civ. App.) 289 S. W. 730."

The latter rule announced in the above-quoted excerpt is supported by the authorities cited therein, and also by the following: White, Ward & Erwin v. Hager, 112 Tex. 516, 522 et seq., 248 S. W. 319; Lawther Grain Co. v. Winniford (Tex. Com. App.) 249 S. W. 195, 199, par. 11, and authorities there cited; Swift v. Roach (Tex. Civ. App.) 266 S. W. 846, 848, par. 2, and authorities there cited; Denman v. Kaplan (Tex. Civ. App.) 205 S. W. 739, pars. 1 and 2; Leavell v. Seale (Tex. Civ. App.) 45 S. W. 171, par. 1; Bailey v. Rockwall County Nat. Bank (Tex. Civ. App.) 61 S. W. 530, par. 1; Lockney State Bank v. Damron (Tex. Civ. App.) 179 S. W. 552, 554, par. 3, and authorities there cited; Security Life Ins. Co. of America v. Allen (Tex. Civ. App.) 170 S. W. 131, 132, par. 1; Johnson v. Johnson (Tex. Com. App.) 14 S.W.(2d) 805, 806 et seq., pars. 1 to 3, inclusive; Shaw v. Lumpkin (Tex. Civ. App.) 241 S.W. 220, par. 1; Shaw v. Avant (Tex. Civ. App.) 23 S.W. (2d) 447, 448, par. 1; Republic Supply Co. v. Barrow (Tex. Civ. App.) 41 S.W.(2d) 475, 477, pars. 1 and 3. Defendants cite in support of their contention Watson v. Rice (Tex. Civ. App.) 166 S. W. 106, and Baines v. Kohler & Campbell (Tex. Civ. App.) 201 S. W. 735. Both of said cases involved a parol...