Wilson v. Sherwin-Williams Paint Co.
| Decision Date | 01 November 1913 |
| Citation | 160 S.W. 418 |
| Court | Texas Court of Appeals |
| Parties | WILSON et al. v. SHERWIN-WILLIAMS PAINT CO. |
Appeal from District Court, Dallas County; R. C. Roberts, Judge.
Suit by the Sherwin-Williams Paint Company against J. B. Wilson and another. Judgment and decree for plaintiff. Defendants appeal. Affirmed.
Holloway & Holloway, of Dallas, for appellants. F. D. Robertson and Leake & Henry, all of Dallas, for appellee.
Appellee sued J. B. Wilson, as owner, and Alex Watson Construction Company, contractor, of a certain building to recover for material furnished one Hieatt, a subcontractor working under the original contractor, Alex Watson Construction Company, and to foreclose the materialman's lien. The defendant Alex Watson Construction Company replied by original answer, and the defendant Wilson by second amended answer. Each set up, by exception and by plea in abatement, that the representatives of Hieatt were necessary parties defendant. The defendants also pleaded a general denial; also, that no notice was given to the owner or to the original contractor of the material as furnished; that no notice at all was given until after the filing of the mechanic's lien and until after the subcontractor had been paid in full by the original contractor, with the exception of a balance of $101.33; that the plaintiff knew of the contract between Hieatt and the Alex Watson Construction Company and knew that the said Hieatt was drawing the amount of his pay rolls each week as provided in his contract, and that the plaintiff failed and neglected to give notice of the material furnished from time to time as is required by the statute, and that the plaintiff was thereby estopped from asserting its claim as to any funds beyond the $101.33; also, that all artisans and mechanics for whom said pay rolls were advanced were entitled to a prior and preference lien against the property and against the funds on hand ahead of the claims of materialmen. The case was tried before the court, a jury being waived. The exceptions and pleas in abatement were overruled. Personal judgment was rendered in favor of the plaintiff, the Sherwin-Williams Company of Texas, against the defendants, J. B. Wilson and the Alex Watson Construction Company, for $1,528.92; the decree also establishing and foreclosing the mechanic's and materialman's lien against the property in question.
The conclusions of fact of the judge of the district court are found to be correct, and the same are adopted as the conclusions of this court, to wit:
1. That the defendant J. B. Wilson is and was the owner of the property described in the plaintiff's petition, and that he contracted with the Alex Watson Construction Company, as the general contractor, for the erection of the building thereon.
2. That the general contractor, the Alex Watson Construction Company, contracted with J. A. Hieatt by written contract, dated June 12, 1911, by which it was agreed that the said J. A. Hieatt should paint the said building, and for such work and material the Alex Watson Construction Company agreed to pay him the sum of $3,000; payments to be made weekly on actual pay rolls for work done on the building, and the balance to be paid within five days after the completion and acceptance of the entire job of painting.
3. That the plaintiff, the Sherwin-Williams Company of Texas, a Texas corporation, on various days beginning July 1, 1911, and up to and including September 21, 1911, furnished to the said J. A. Hieatt, the subcontractor, various paints and other materials to the extent and value of $2,171.30. That the same were delivered to the said Hieatt and to his agents at the place of business of the Sherwin-Williams Company of Texas, and that they were ordered for the building in question and were charged on the plaintiff's accounts to the said J. A. Hieatt on account of the said Wilson building; the said Hieatt having several accounts with the plaintiff at the time and having several buildings under contract. That the plaintiff furnished all of said materials in good faith supposing that they were all to be used in said Wilson building. That in fact a portion of said materials to the extent and value of $1,528.92, were used in the painting of said building and were wrought into and became a part of said building. That the remaining portion of said materials, $642.38 in value, were not used in said building, but that the plaintiff had no knowledge that the same were not so used in said Wilson building.
4. That no notice of the furnishing of said materials was given to the said J. B. Wilson, or to the said original contractor, the Alex Watson Construction Company, from time to time as said materials were furnished. That on September 30, 1911, written notice of the furnishing of said materials was given to the said original contractor, the Alex Watson Construction Company; said notice being in the words following, and also having attached thereto itemized statements of each bill of material with the prices therefor and the amounts due, said itemized bills being of the dates of the sale of said materials from July 1, 1911, to September 21, 1911, to wit:
5. That on October 9, 1911, the plaintiff gave to the said J. B. Wilson written notice as follows; the said notice being attached to a duplicate copy of all of said itemized statements, the same as in the case of the notice to the said Alex Watson Construction Company, to wit: ...
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