Sullivan v. Dubis, 12744

• Decision Date: 29 July 1954
• Docket Number: No. 12744,12744
• Citation: 271 S.W.2d 316
• Parties: J. Y. SULLIVAN et al., appellants, v. Stanley DUBIS, d/b/a Modern Construction Co., et al., appellees.
• Court: Texas Court of Appeals

Page 316

271 S.W.2d 316

J. Y. SULLIVAN et al., appellants, v. Stanley DUBIS, d/b/a Modern Construction Co., et al., appellees.

No. 12744.

Court of Civil Appeals of Texas, Galveston.

July 29, 1954.

Rehearing Denied Oct. 7, 1954.

Willett Wilson, Houston, for appellant.

Bernard Kay, Allan H. Kottwitz, Houston, for appellee.

GRAVES, Justice.

This appeal is from a judgment of the 55th District Court of Harris County, Honorable Ewing Boyd sitting as judge without a jury, declaring in substantial substance that the principal appellee herein, Stanley Dubis, d/b/a Modern Construction Co., was entitled to a total judgment against the appellants herein of $9,793.51, out of which total the other appellees here, intervenors below, as subcontractors and material furnishers, were entitled to participation therein in these respective amounts: Intervenor Manor Lumber Company in the sum of $3,344.56; Intervenor Alfred Heyl, d/b/a Heyl Electric, in the sum of $784; Intervenor Herman B. McLemore, d/b/a McLemore Plumbing Company, in the sum of $426.25.

Such overriding total judgment had been decreed by the court in favor of the appellee, Stanley Dubis, d/b/a Modern Construction Co., under a mechanic's lien contract he had entered into September 22, 1952, with appellants, J. Y. Sullivan and wife and Eugene R. Anderson and wife, whereby appellee, as contractor, was to repair fire damage which had occurred on property belonging to the appellants, towit: Lots 9 and 10 in Black 2 of Airport Place, an addition to the City of Houston, Texas.

The trial court did not file findings-of-fact, or conclusions-of-law, in support of its judgment, although this notation was appended at the end thereof: 'Notice of Request noted-/s/ Ewing Boyd, Judge.'

Appellants present these points-of-error against the judgment so rendered below:

1. 'The court should not have granted a foreclosure of the mechanic's lien because the mechanic's lien contract was not a valid contract, not being executed by competent parties, and no statutory lien was created thereby on the homestead property of J. Y. Sullivan and wife, Gertrude Mae Sullivan.'

2. 'The court should have construed and considered together all of the written instruments whereby this building repair contract between the puported contractor and the Sullivans was consummated to determine the intention of the parties, and so considering them should have found that no money was to be paid contractor until completion of work.'

3. 'The court should have permitted the typewritten words in the instrument dated August 19, 1952, to control over the printed words in the mechanic's lien contract dated September 22, 1952, in determining the intention of the parties, and denied any recovery until repairs were completed according to the contract.'

4. 'The Defendant owners were within their legal rights in stopping the contractor before expiration of the extended performance time where he continued to violate the good workmanship provisions of the contract and the City Building Code.'

5. 'The court should not have granted the contractor any recovery for partial performance of repairs under the mechanic's lien contract, because the property was homestead, and there was not substantial performance.'

6. 'The court should not have given a judgment for Plaintiff against Defendants in the definite amount of $8,100.00 plus 10% interest from December 31, 1952, to date of the judgment, plus 10% attorney's fees, because said definite amount of $8,100.00 is not supported by the evidence.'

7. 'The court erred in including in the judgment of foreclosure of the mechanic's lien on the homestead property the 10% attorney's fees provided in the note.'

None of these presentments, it is determined,...