Stewart v. Woods Electric Co., 9975.

• Decision Date: 21 June 1934
• Docket Number: No. 9975.,9975.
• Citation: 73 S.W.2d 657
• Parties: STEWART v. WOODS ELECTRIC CO.
• Court: Texas Court of Appeals

73 S.W.2d 657

STEWART v. WOODS ELECTRIC CO.

No. 9975.

Court of Civil Appeals of Texas. Galveston.

June 21, 1934.

Appeal from District Court, Harris County; Allen B. Hannay, Judge.

Suit by P. C. Stewart against the Woods Electric Company. From an adverse judgment, plaintiff appeals.

Affirmed.

Harry Holmes and Gail Whitcomb, both of Houston, for appellant.

Kemper, Hicks & Cramer, of Houston (F. Warren Hicks, of Houston, of counsel), for appellee.

GRAVES, Justice.

The appellee's statement, though too long, is thought to be accurate and to reflect the findings which the trial court, on sufficient evidence appearing in the statement of facts, will be deemed to have made in entering the judgment it did:

"This suit was by P. C. Stewart of Harris County, against Woods Electric Company, a corporation, of Harris County. The action was:

"(a) For damages for the alleged conversion of certain lighting fixtures which had been installed in the house located at 3425 Southmore Boulevard, Houston, Texas, by Woods Electric Company, and subsequently removed by it;

"(b) For the removal of a cloud of title caused by the filing by Woods Electric Company of a materialman's lien on certain property located on Troon Road in River Oaks Addition, Houston, Texas.

"Brainin & Winston, relators, with Howard S. Brainin in actual charge, were the sales-agents for the properties belonging to Southwood, Inc. Howard S. Brainin, as an advertising and sales promotion scheme, on or about August, 1931, began negotiations for the construction of a model home at 3425 Southmore Boulevard, which was to be known as the `House of Southern Hospitality.' It was his plan to erect the home, furnish it complete, and use same as an advertising and sales promotion scheme for the Southwood Addition. In line with this plan, Howard S. Brainin, as sales agent for Southwood, Inc., caused to be deeded to Enoch W. Dalstrom and wife, Matilda Dalstrom, Lot Seventeen (17) and the East Ten (10) feet of Lot Sixteen (16), of Southwood Addition to the City of Houston. He then made arrangements with Johnson & Gustavson, contractors, to construct the `House of Southern Hospitality' in accordance with approved plans and specifications, arranging with the Fields Lumber Company to furnish the materials for the construction of the house, and providing for the creation of a $10,000.00 mechanic's lien to take care of the cost of construction. These plans and specifications did not provide for lighting-fixtures, but an allowance of $150.00 was stipulated in the set-up of expenditures for lighting-fixtures.

"In line with the above plan initiated by Howard S. Brainin, on August, 14, 1931, J. S. Johnson and C. A. Gustavson, as contractors, Enoch W. Dalstrom and Matilda D. Dalstrom, as owners of the property known as 3425 Southmore Boulevard, Houston, the same being Lot 17 and adjoining East 10 feet of Lot 16 in Block 6 of Southwood Addition to the City of Houston, entered into an agreement whereby Johnson & Gustavson agreed to erect and complete a brick veneer house and improvements on the property according to plans and specifications agreed upon by the parties, for and in consideration of $10,000.00 to be evidenced by a note of even date with such agreement, payable to the order of Johnson & Gustavson, due in ninety (90) days, to be executed by Enoch W. Dalstrom and Matilda D. Dalstrom. Southwood, Inc., a corporation, joined in this contract for the purpose of subordinating a vendor's lien held by such corporation covering the sale price of the above lands. It was expressly stipulated in such contract that Johnson & Gustavson should retain and have a valid, existing mechanic's and materialman's, laborer's and contractor's lien, equities, securities, and interests in and to the described real estate, two-story brick veneer house to be erected thereon, and the improvements now upon and to be placed upon such land, and in addition to such liens, a deed of trust lien to be given for the further and cumulative security. It was expressly provided that the note might be assigned and such assignee be subrogated to all rights existing.

"On August 16, 1931, in line with the agreement above referred to, the note, together with all rights, liens, and equities, including the deed of trust lien, were assigned by Johnson & Gustavson to H. G. Fields.

"On September 14, 1931, H. G. Fields rearranged and extended the maturity date of Enoch W. Dalstrom and wife, and accepted in the extension and rearrangement of same one note for $7,850.00 and one for $2,150.00, each payable to the order of H. G. Fields sixty (60) days after date, and further secured by deed of trust to F. F. Beadle, Trustee. Any and all liens existing were recognized and expressly retained.

"The house was completed on or about October 1, 1931. When same was completed in line with the original plan, it was furnished very elaborately in Eighteenth Century Colonial Style furniture, under the personal supervision of Mr. Jantzen, interior decorator, of the Stowers Furniture Company. Stowers Furniture Company furnished the drapes and furniture to furnish the house as an advertising scheme in connection with their furniture business in the City of Houston. Other parties furnished pictures and gas-steam radiators, all of which were furnished under the personal supervision of Mr. Jantzen, who had complete charge of the interior decorations in the house. In working out the interior decorations, Mr. Jantzen required some period electric light fixtures to harmonize with the furniture, and objected to the placing of cheap light fixtures which the original set-up called for.

"When Mr. Jantzen objected to the cheap electrical fixtures, the contractors, Johnson & Gustavson, the owner, E. W. Dalstrom, and the sales agents, Brainin and Winston, entered into an agreement with the defendant, Woods Electric Company, for the installation of lighting fixtures that would harmonize with the furniture and other interior decorations, under a written agreement whereby Woods Electric Company agreed to install the lighting-fixtures selected by Mr. Jantzen, with the understanding that it was to be paid the agreed price out of the cash payment received upon the sale of the property, and with the further understanding that in case the purchaser desired cheaper fixtures than the ones installed, that it would remove them at its own expense, and install cheaper fixtures, which the other parties to the agreement agreed to purchase from it at a price of $150.00, Woods Electric Company agreeing to defray all expenses in installing and removing lighting-fixtures in the event purchaser did not want same; the agreement also providing that in the event the home was not sold within ninety (90) days, Woods Electric Company was to have the right to remove the lighting fixtures installed.

"The house was completed about the 1st of October, 1931. An effort was then made to sell same by advertising it, both in the newspapers and over the radio, and the house was on display for about six months. In displaying the house, signs were displayed in the rooms reading as follows: `Lighting fixtures loaned by Woods...