*1
CO.
FIELDER LUMBER
SMITH
A. A.
rеmaining
parties,
in the
in the
made
to the
of the trustees.
n orat
appellee might
able
be
show
cases,
Schools
see
of rent due.
the amount
he had tendered
Dig.
203-205;
Districts,
Dec.
§§
School
Cent.
practice
pleading
are
our rules
While
Dig. 86.*]
§
may
demand
occasion
broad
(cid:127)almost as
Assign
Assignments
50*) Equitable
(§
2.
—
Sufficiency—Funds.
that are ele-
certainty
time for reasons
(cid:127)at
the same
ments —
supervis-
a contractor
An
mentary,
least
must
there
be
whose
a school
architect of
n definitenéss.
charged
petition
under the
estimates
certificate
to be
to
tween
etc.,
property,
charge
owner of the
was the
paid,
materialman
good as be-
was
“account”
about
on or
the 10th
the contractor’s
the defendant
and “that
the contractor
willfully
1909, unlawfully
-day May,
equitable
aof
an
as
fund then
what
material whom
property” and con-
of said
took
being
hands;
clear
trustees’
being im-
to,
his
use.
It seems to us
same to
own
verted
referred
account was
addressed.
the order
June, 1910,
proof
of conversion
Assign
cases, see
other
[Ed. Note.—For
Busby
the tender
Arch
testified
time when
Dig.
50.*]
99-105;
Dig.
§
ments,
Dec.
§§
Cent.
made,
August,
or in
when the
was
pleading
1*)
Instruments
Lost
3.
—Evidence.
_(§
actually
alleged
the tender
por-
aof
The fact that a written transfer
made,
from “on or
both too far removed
affect
tion of a
lost does not
fund was
validity
being only
sufficiency,
1909,”
evidence
day May,
afford
about
the 10th
thereof.
entry
judgment
basis for
cases,
Instru
[Ed.
Lost
Note.—For other
see
pleading in this case.
ments,
Dig.
Dig. 1.*]
1-5;
§§
§
Dec.
Cent.
say
[5,
most
refer
6] The
we care
Assignments
85*)
(§
4.
—Priorities—Trans
n ence
appellant’s
of er
fer
Fund.
course,
portions
is,
ror is that
correct
Transfers of
of a certain
respec-
will
satisfied
of their
only purpose
supple
asserting
of a
dates.
tive
allegation
petition is
of new facts
mental
cases,
Assign
other
[Ed. Note.—For
see
alleged
reply
alleged
to those
not before
by
Dig.
ments,
Dig. 85.*]
149-151;
Cent.
§§
§
Dec.
pleading. And in
in his
Assignments
(§
Transfers—
—Oral
Assignment.
improper
Equitаble
for us to
that connection
equi-
An oral transfer
is as
effective
subject
pursue
say
purpose
table
as a written transfer.
n ofan amendment
petition
to add
'
Assign
cases,
[Ed.
other
Note.—For
something
something
withdraw
ments,
Dig.
Dig.
67-71;
34.*]
§§
Cent.
Dec.
§
previously pleaded,
so
that which
Agency-
—
(§ 23*)
6. Husband
and Wife
Assignments.
perfect
which is
defi
Contracts —
contractor, who,
The wife of a
his
or to correct that
has been incor
cient
which
consent,
was in active
of the erection
follow,
rectly
And it
stated.
per-
things
of a
his
in all
rules, that,
intended to cor
taining thereto, and authorized
execute
alleged
transfers of
conversion,
materialmen from
date of
rеct
funds due.
by an
have been
amendment of
done
Note.—For other
Husband
original petition and would have been
his
Wife,
Dig.
Dig.
§§
§
Dec.
supplemental
improper
petition.
in a
23.*]
carefully
We have
examined
other
Mortgages
(§ 5*) Assignments
Chattel
—
error,
nothing
signments of
find
and we
—Construction.
clearly
An
which
instrument
shows
plained
probably
of therein that
will
due,
transfer of
that will be
last
on another trial.
(cid:127)corrected
purpose
clause of
secure
states the
indicated,
judg-
note,
appearing
errors
Because
it not
is,
otherwise what
the consideration
will be
reversed,
ment
only
construed to intend
intended
to describe the debt
remanded
another triаl.
cause
paid,
and will not be
mortgage.
see Chattel
Mortgages,
Dig. 5.*]
4r-13,
§§
Rehearing.
FIELDER LUMBER CO. et al.
A. A.
Appeal
(§ 907*) Presump
and Error
SMITH al.
et
Support
Judgment
tions
—Priorities.
priori-
determining
Where
(Court
of Civil
of Texas. Dallas.
ties between two transfers
the
from fund of
Rehearing,
1912. On
Oct.
Nov.
date,
judgment
same
in its
states that
23, 1912.)
one of them should be
in full
before
86*)— other,
finding
no
i§
Districts
to
of
1.Schools
School
affirmative
Buildings.
priority,
being
actual
there
Public
statement
Const,
record,
37, declaring
art.
will
sus-
that mate-
tained;
facts
presumed
being
that the
rialmen shall have
court had
a lien
support
priority adjudged.
before
furnished,
for material
and the statutes enact-
pursuance
it,
ed in
Appeal
fix the lien
[Ed. Note.—For
buildings,
upon any money
Error,
land and
and not
2911-2915,
owner;
hands of the
the
by
of notice
3674, 3676, 3678;
§ 907.*]
a materialman
the trustees of a school Appeal
Court, Grayson
from District
Coun-
a claim
district of
materials
a school
Judge.
building gives
ty;
Jones,
rights.
L.
lien on or
otner oases see
topic
*For
and section
Key-No.
NUMBER in Dec.
Am.
& Rep’r
Series
Indexes
*2
161 SOUTHWESTERN REPORTER
against public policy,
by
Lumber Com-
that all mon-
A. Fielder
the A.
claimed
Action
ey
paid
against
pany
Smith
and oth-
the contract
to
except
judgment against
$2,138,
Nellie Smith the
which was
ers. From a
declaring priorities against
completion
the contract reserved until final
and her husband
acceptance
building by
fund,
and
tect;
archi-
Fielder Lumber Com-
of the
certain
appeal.
part,
in-
Affirmed in'
that the other
others
defendants
and
and
part.
superior
claiming prior
terveners
rights
were
and
and rendered
and reversed
they
were un-
and that
Wood,
Head,
Smith,
Head,
J. H.
Hare &
able
be
to determine
whom
Sherman,
Cunningham,
and
J. T.
all
and
they
made;
tendered
their
Dallas,
appel-
Holloway Holloway,
&
into
and asked that
it be
McReynolds
Hay
Abney &
lants.
and
Ap-
to whomever was
thereto.
entitled
Hassell,
Dougherty,
P.
all
and Edward
Works,
Palmer
Pressed Brick
like
Dallas,
appellees.
appellant
manner with
Lumber
Fielder
Com-
pany, established,
ner
time and man-
within the
RASBURY,
J. Nellie
provided by law,
statutory
material-
Smith,
contracted with
L.
building
land,
man’s lien on the school
Alstyne independ-
trustees
school
of Yan
superior equitable
and asserted
well a
county
Grayson
ent school district of
fur-
upon
lien
trustees
the funds in the hands of the
material
labor
nish all
independent
statutory liep.
of the
complete
building
public school
build and
upon
based
notice to the trustees of the fur-
Alstyne
in the
Van
town of
cer-
nishing of material with
which
construct
plans
Tulloch, architect,
specifications prepared by
tain
John
super-
under
his
attempt
give
We shall not
in detail the
vision. The consideration to be
pleadings of the other defendants and in-
payments
$11,000,
upon
contractors was
terveners for the reason that n'o issue is
every
which amount were to be made
two
upon
thereof. Their
upon
architect,
weeks
estimates of the
claims to
the fund
the hands of the trus-
progressed. During
progress
the work
upon assignments
tees rest
from the con-
appellant
the work the
Fielder Lumber Com-
properly urged
pleading.
tractors
in their
l>any
against
suit in
district
filed
The case was tried without the intervention
against
Smith and B. L.
jury,
upon findings
the case
is here
McKinney, Howie, Henderson,
Messrs.
Um-
prepared by
of fact and conclusions of law
phress, Cartwright, Sheridan, and McDon-
judge. By
its decree the trial
public
ough,
Alstyne.
trustees
schools Yan
par-
court entered
in favor
Van
Lumber Com-
appeal against
ties to this
B. L. Smith for
pany,
Barnett,
Manufacturing
F.
Mosher
W.
respective
the
school
the
amounts
their
claims. The
Company,
Continental State
and Palm-
were
retain
directed
Brick
Works
also made de-
Pressed
their hands
$202
which
Dough-
fendants.
J. G.
and M. F.
complete
the bal-
erty
Appel-
& Son intervened in the suit.
$1,936
registry
ance of
into the
of the court.
Company alleged
lant Fielder Lumber
The court further decreed that
it
B. L.
and delivered Nellie S.
sold
and
ma-
Smith
Company
Fielder Lumber
ed Brick Works
the school
Palmer
Press-
building
certain
Smith
lumber and
acquired
no lien either
terial
which
there was
balance due
land
the fund in
$2,335.08,
which was used
them in con-
the hands
structing
a school
owned
signment given
public
Com-
trustees of
schools of the town of
pany was
insufficient
law
Alstyne;
alleged that,
to constitute a
Van
within]
transfer or
provided
law,
manner
time and
it fixed
due the contractors or create
statutory
interest
and secured the
materialman’s lien
therein. The
into
tendered
court was-
lot
land
stood,
directed to be
as hereafter shown
at which time there
any participation
to
by appellants,
exclusion of
$2,200
therein
was in the
Company,
Fielder
in,
Lumber
said build-
Works,
sought
Palmer
Manufacturing Company.
ment,
ing,
appropriate
Pressed Brick
and Mosher
relief
fore-
judg-
From
closure and sale
to the
the funds
said
a direсtion
appealed.
the last three named have
trustees to
the debt from
possession belonging
It would consume too much time to con-
their
separately
propositions
Smiths,
sider
each
lants,
the counter
and asserted
if not en-
propositions
lien,
appel-
titled
the materialman’s
it was in
equity
Lumber
Fielder
entitled to
from the
Palmer
Works,
Pressed Brick
because
the notice
Manufac-
material
turing Company,
attempt
furnished. The school
trustees answered ad-
Smiths,
so,
mitting
to do
consideration
but content
with the
ourselves
careful
dis-
brings
legal right
puted
of each.
This
us
Fielder Lumber
Company
proposition
fix a
lien on the
consideration
asserted
build-
Lumber
law such
Fielder
was void as
y.
FIELDER
A. A.
LUMBER CO. SMITH
any money
mechanic’s lien law fixes a
out the
viding
fendant
the statutes and decisions of our
susceptible true
struing
of such a
over
statutory
them
meant
owner
who
ment of
tution,
liens,
vided
building. Nothing more, however,
section
which
ant after service of the writ. We are con-
firmed
idences the intention of
to establish the
and would
such writs are available.
tors in the same manner that
such notice was a
material
der article
lant’s debts.
Constitution to
trustees and
known to
29 Am. St.
statutory
its
the
under
statute and
by us,
County Angus,
Rev.
to
county
cellent brief of
ed
reason and
pellant.
bor, etc.,
ed
[1] But
Lumber
the authorities
garnish
funds
against
every
Palmer
subjeсted
subsequent proceedings
subsequent assignments by
Civ.
by law, operate
when established in the manner
declares that
and we content ourselves
in this
its second
notice
for the
have used the
clerk as
goes
Article
class
are not
St 1911
610
constitute an
pected.
contractors
repaid
said fund to reimburse him for such ad
advancеd
vances.
guage
clear
and there
law
come
they subsequently executed a written trans-
fer
to receive
tween Barnett and the contractors
signment
claim is made that
agreed orally that Barnett
Barnett to meet the
ing.
bor.
bursed
ion,
tors,
without
cordingly, by
displaces all the other orders other than the
transfer to Continental State Bank.
bell,
manner
transfers
respective dates, and
to
pie.
reference
same,
state,
lowance of
rected
board.
transfer, it
tractors,
70 Tex.
derstand
Mosher order
San
243,
the
parties
to
in out of
ris
& L.
S. W. 106.
As
[3]
Pillott
County Campbell,
covering
no
Antonio,
110 S. W.
supra.
2 Am. St.
cut
during
due,
indicated
By
judge quoted
The loss
What we have said
They
since it was but the evidence thereof.
use
more
and reimbursed for the
to this
work,
In
money
affect
sufficient transfer
When all essentials
connection with our conclusions
In
McDonough,
evidence
out of
v. Keller et
assigned
127 S.
322;
from the
shall rank in
questions
found
Henke & Pillott v.
and similar to the
does seem to
attacked because
oral
secured sufficient
than a
equitable assignment
B. S.
Mosher the
meets
constructing
783;
funds due the
in
suit,
Knappie order,
Rep. 467;
Beilharz v
with which to
W.
out of
progress
original
another
transfer
to him
the transfer
validity
subsequent
herein establish process
establishes and finds as
promise
233;
Harris
121;
amount
expense
of the trial
uniformly
secretary
al.,
such oral
had that
consideration thereof
27 W.
notice
68 Tex.
oral
objection
satisfied
Barnett
the order of their
Stillson v.
court,
McBride v.
orally
place
50 Tex. Civ.
dark v.
sum named there-
S.
transaction. The Knappie
us that
money they
the Mosher order
the school build-
County Camp
Illingsworth,
aside,
should be
reference
due,
improperly
contractors
Keller,
loss
attempted
which we
assign part
sufficiency
could
effect.
the contrac-
could in
sufficient of part.
the Mosher
789;
between the
work,
22,
appropriate
agreement,
and to be judgment of the court is affirmed.
in full
judge,
should be
this
by Knap
and then
Gillespie,
their la-
the lan
laborers
Stevens,
Olive
3 S.
inwas
Am. R.
Henke
be ex
supra.
school
of the
prov-
reim-
opin-
from
were given by the contractors in the order of their
legal
App.
Har-
giv
un
as- them;
be-
ac
W.
di
al
to after
by as a written
v.
tinental State Bank and Mosher Manufactur-
that his
ing urges
balance of said
based
the trial court.
centage
Manufacturing Company. The claims of
ing Company, with instructions to
ber
dates, which is first the claim óf Continental
discloses, being
court to reform its
fy
held to create a
rendered as to
fair
only language in the transfer that could be
tended
tors intended to
to be to secure
same, we conclude the last clause
Works will be
and,
states the actual consideration or
wherein
thereto. Hence we overrule all the
than an
first and second clauses
clearly
timate for work on the school
judge;
her
under the contract.
work
101 Tex.
87 Tex.
stitute her his
Pressed Brick
Continental State Bank is a
*6
will be due the contractors on their last es
ments
to execute the transfers of the
accordingly
orally, such
Smith, with the
supra;
son v.
en
Appellee
Affirmedin
The case as to the
[6]
[7] The claim
W.
Mosher,
construction of the
full,
503; Campbell Grant,
only
have
each to receive that
show a transfer of the
Amarillo
judgment
Rollison
error