Eastland Building & Loan Ass'n v. Eastland County Lumber Co.

LESLIE, J. This is a suit by the Eastland County Lumber Company, appellee here, against the East-land Building & Loan Association, appellant for $420, alleged to be the balance of the consideration which the association- obligated itself to pay the lumber company for a $2,700 promissory note, and mechanic’s and materi-almen’s lien securing same; $2,280 having been theretofore paid the lumber company. Trial was before the court and resulted in a judgment for plaintiff for the amount sued for, and the association prosecutes this appeal. There are no findings of fact or conclusions Of law. The parties will be referred to as in the trial court. For cause of action the plaintiff, lumber company, alleged that, by virtue of an agree *370 ment between itself and the loan association, the latter became bound and obligated to pay it the sum of $2,700, upon its indorsement to said loan association of said note, together with a transfer of the lien securing the same. That sueh indorsement and transfer were made on or about February 14, 1929, at which time, in part performance of its contract, the association paid to the lumber company $2,-2S0, leaving a balance of $420 due and unpaid, for which this suit was instituted. The defendant association answered by general denial and specifically pleaded that, at the time of the transfer and assignment to it of said note and lien, there were two unpaid claims for labor and material (to R. P. Crouch for plumbing, $325, and to G. W. Sherrill for electric wiring, $95), aggregating $420; said sum was withheld by the defendant with the agreement that the lumber company would pay said outstanding claims and furnish.the association with receipted bills and releases therefor; whereupon, the remaining sum of $420 was to be paid by defendant to plaintiff. The defendant further specially pleaded partial failure of consideration, and that the plaintiff was liable on its warranty, notwithstanding it indorsed the note without recourse. The material facts out of which the lawsuit arises are: J. O. Earnest and wife, Lorena Earnest, being desirous of erecting a homestead residence on a certain tract of land in Eastland county, contracted with L. D. Willis to construct the same, according to certain plans and specifications. The consideration was paid by the owners, part in cash and the part (here involved) by a promissory note payable to the order of said Willis for $2,700. The note and lien were executed with the legal formalities necessary to the fixing of a lien as security on a homestead. The note and lien were of date December 3, 1928. Immediately, on December 6th following, the note and lien were by said Willis indorsed ana transferred to the plaintiff lumber company and duly filed for registration in the county clerk’s office of Eastland county on December 7, 1928. By written instrument bearing date February 14, 3929, the lumber company transferred the note and lien to the building and loan association, • and this instrument was filed for record on the 18th day of February, 1929. The note was indorsed, without recourse, by the lumber-company. After the assignment of the note and lien to the lumber company, R. P. Crouch contracted with the original contractor, L. L. Willis, for the installation of the plumbing, and G. W. Sherrill contracted with the said Willis for the electric wiring of the Earnest house. The residence was apparently completed, according to contract, plans, and specifications, the latter part of January, 1929. On February 18, 1929, the subcontractor, Crouch, took first steps to fix a lien against the property of the owner, J. O. Earnest, for material and labor furnished by him under the contract with Willis. Due notice was served upon the owner and a sworn account was filed in the office of the county clerk on February 19, 1929. The following day G. W. Sherrill took like steps to fix a lien for his labor 'and material against the owner’s property. Although the original contractor, Willis, assigned and transferred' the note and lien to the lumber company on December 6, 1928, and the same was, on December 7, 1928, duly recorded in the county clerk’s office of Eastland county, he nevertheless proceeded with the construction of the residence, and, according to the undisputed testimony and the accounts filed by Grouch and 'Sherrill, it was with him that each of them contracted to furnish the labor and material, the price of which aggregates the sum here sued for, ■ and to secure which they attempted to fix respective liens. From these undisputed facts it clearly appears that, after December 6, 1928, the date of the transfer of the note and lien by Willis, no one furnishing labor or material for the construction of this residence, by virtue of a •contract with Willis only, could fix any character of lien on the owner’s 'property as security for áuch labor and material. This is the material consideration in the case, and since Grouch and Sherrill contracted with Willis at a time when the owner of the building owed him (Willis) nothing, it was not thereafter within their power to serve the owner with notice and fix a lien on his property for the price of such labor and material furnished and used by virtue of such contract with Willis. It seems to have been uniformly held in this state that, after a note secured by a lien has been transferred by the contractor- to whom it was given, and under circumstances herein detailed, one furnishing labor and material to sueh original contractor (as did Grouch and Sherrill) cannot fix a lien against the property of the owner, and the assignee of a note and lien holds the lien as provided in the contract for the full amount of the note. Thelander v. Becker (Tex. Civ. App.) 199 S. W. 848 (writ refused); Beilharz v. Illingsworth (Tex. Civ. App.) 132 S. W. 106 (writ refused); Gordon-Jones Construction Co. v. Welder (Tex. Civ. App.) 201 S. W. 681 (writ refused). - From what has been said it follows that it is our conclusion that the note and lien were in all respects what they purported to be when assigned by the lumber company to the building and loan association, and that, in so far as the particular claims here discussed are concerned, no legal reason existed or now exists for the withholding of the unpaid balance of the amount promised by the association for the $2,700 note and here sued for. *371 The defendant’s special defense, based upon the possibility of the Crouch and Sherrill claims being protected by liens against the owner’s property, is believed to be a misapprehension of the facts and without legal foundation, since, as pointed out, said claims were at no time protected by the original contractor’s lien against the owner’s property, and the subsequent attempt to fix a lien against that property availed nothing. From these conclusions we pass to an examination of the testimony and consideration of the pleadings (especially those upon 'which the plaintiff seeks to recover judgment herein), with the view of determining whether or not the pleadings form a sufficient basis for the judgment, and whether or not there is any evidence reasonably supporting the judgment appealed from. As stated, there are no findings of fact or conclusions of law, and the judgment of the trial court must therefore be sustained if there is testimony supporting any theory authorizing it. L. D. Powell Co. v. Lee (Tex. Civ. App.) 257 S. W. 308. Upon an examination of the pleadings, we find them sufficient to support the judgment, and we also believe the evidence is ample to support the same. More specifically we do not sustain the defendant’s contention that the plaintiff alleged an unconditional contract with the defendant association to pay it (lumber company) $2,700 for the note and lien, and proved a conditional one to pay $2,280 for the same and the balance upon a contingency. There was evidence supporting the plaintiff’s allegations of an unconditional contract to pay the $2,700 for the note and the lien, and the matters involved in the contingency were occurrences or considerations subsequent to the actual making of the contract between the parties and were in the nature of precautions or excuses for a temporary nonperformance by the defendant association. The only variance which we discover is as to the date of the oral contract alleged. There was but a slight misdescription and to be available here the point should have been raised in the trial court. Kelsey v. Myers (Tex. Civ. App.) 29 S.W.(2d) 855. What is here said necessarily disposes of the plea of partial failure of consideration, as well as the other matters of special defense, and believing each of the propositions urged by appellant to be without merit under the facts of the case, they are overruled and the judgment of the trial court is affirmed. FUNDERBURK, J., not sitting.