Stroter v. Brackenridge

• Decision Date: 27 May 1908
• Citation: 118 S.W. 632
• Parties: STROTER et al. v. BRACKENRIDGE.
• Court: Texas Court of Appeals

118 S.W. 632

STROTER et al. v. BRACKENRIDGE.

Court of Civil Appeals of Texas.

May 27, 1908.

Appeal from Travis County Court; John W. Hornsby, Judge.

Action by R. J. Brackenridge against H. W. Stroter and wife. Judgment for plaintiff, and defendants appeal. Affirmed as to the mentioned defendant, and reversed and rendered as to the feme defendant.

See, also, 118 S. W. 634.

D. W. Doom and D. H. Doom, for appellants. N. A. Rector, for appellee.

KEY, J.

R. J. Brackenridge brought this suit against H. W. Stroter and his wife, Minnie Stroter, seeking to recover upon a written obligation for $160, with interest and attorney's fees. The case originated in a justice of the peace court, but was appealed to and finally tried in the county court. H. W. Stroter seems to have made no defense, but Mrs. Stroter pleaded her coverture as a defense. The plaintiff sought to hold Mrs. Stroter liable upon the theory that the contract was for the benefit of her separate property. The county court sustained that contention and rendered judgment against both defendants, authorizing execution to be levied upon either community property of the defendants or separate property of Mrs. Stroter. The defendants have appealed and present the case in this court upon several assignments of error, all of which relate to the liability of Mrs. Stroter.

The undisputed testimony shows that a tract of land was conveyed to Mrs. Stroter for a recited consideration of $500 in cash and a vendor's lien note for $300, signed by Mrs. Stroter and her husband. The deed also recites that the property is conveyed to Mrs. Stroter as her separate estate, but it does not show that the cash consideration paid was her separate property. Thereafter the plaintiff, Brackenridge, loaned Stroter and his wife $160, and received from them a written contract, the pertinent terms of which are as follows:

"(1) That the said R. J. Brackenridge, party of the first part, agrees, at the request of the said parties of the second part, to furnish them, at their fair cash value, the labor and materials necessary to be used in constructing the following improvements, viz.: A three-strand wire fence on the south line of a 165-acre tract with posts at the intervals of a rod (16½ feet) apart, the corner posts to be well braced, on the homestead of said parties of the second part, consisting of 165 acres, situated in the county of Travis, in the state of Texas, and more particularly described as follows: Known as the Henkel's tract of land a part of the Wilkinson Sparks one quarter league situated on the west side of the Colorado river about three miles from the city of Austin. (2) That the said H. W. Stroter and his wife Minnie Stroter, parties of the second part, in consideration of said labor and materials being so furnished, agree to pay the reasonable cash value of the labor and materials so used in constructing said improvements on their said homestead, amount to ($160) one hundred and sixty dollars, to the said party of the first part, on or before the 21st day of June, A. D. 1903, at Austin, in Travis county, Texas, with interest thereon at the rate of ten per cent. per annum from date until paid; and if an attorney is employed to collect the same, after maturity, an additional ten per cent. on the amount to be collected for attorney's fees; and the said party of the first part is hereby declared to have a mechanic's lien on the improvements so made and the said one hundred and sixty-five acres upon which the same are situated, to secure the payment of the money to become due for said labor and...