*1 REPORTER 204 SOUTHWESTERN following BUCK, state- We J.. take brief, appellants’ ment of this case from LOAN IN- al. NATIONAL et HARROP may DETROIT, which, MICH. see OF we VESTMENT CO. with such additions as 8831.) (No. make, present sub- fit tbe we believe Appeals (Court Ft. of Texas. Worth. stantial features: of Civil Rehearing, 30, 1918. On March 'by judge case “The without a tried May 11, 1918.) jury, resulting judgment appellee in a for for $1, n 6.46, principal interest, — and the fur- and @=>73(2) Liens on 1. Mechanics’ Liens cent, attorney’s per $144.64, ther sum of as 10 Homestead —Contbact. cent, per fees, upon with 10 interest both a A lien contract on mechanic’s amounts from closure and fore- Sayles’ date of with art. Vernon’s Ann. Civ. St. under 5631, building, ex- of lien the homestead not of need set out cept attorney’s judgment for except general as to the fees. essentials. $1,400 “The a note for dat- — @==373(2) Liens Contract Mechanics’ 2. February 22,1915, Lien. itor Berry, order, April 1, 1915, due IC C. providing lien on homestead for Contract cent, per date, providing 10 for ing from and interest house, $2,000 for in cent, acknowledg- per and fees cash, $1,400 mechanic’s secured materialman’s, mechanic’s, therein a build- invalid, is far the owner con- is as not as er’s, premises contractor’s lien on really repair cerned, and $600 contract was because petition, alleged appellee’s ex- scribed ecution of such lien allowing house; enlarge an old same of date secure standing walls. for lumber and payment were note, and and lien of said that said note @=>73(2) on Liens 3. Mechanics’ —Liens assigned appellee, on March Homestead —Contract. 1, 1915, appellants, note, further secure on home- lien Ann. Civ. A contract for mechanic’s $2,800, a bond executed to tioned for the for condi- Sayles’ stead, 1914, failure to defeat as would St. Vernon’s per of month $21.42 validly provide a could art. cent, note, attorney’s fees, on said for 10 complete improvements should bond was secured deed of trust price, less lien for property the same described. reasonably “It admitted the trans- improvement. action shown in by sued on out instruments set @=>62 Estohpel— and Wife 4. Husband — a loan the statement of facts was Husband. Acts oe appellee, and that it is the owner of the occupying her a husband Wife obligations alleged, and of liens that a contract house not constructed exist thereunder. jointly with a for its erection third appellants pleaded property “The cov- deny perform- person is not plead- homestead; ered ed lien was a by husband, of acts account ance of contract on usury against debt, lien except silence, where such mere reason of (1) void: Because the lien contract person, and she innocent an deceives silence that the in the be constructed was to be built so. that it shall do intends accordance @=>73(2) Liens' Mechanics’ 5. —Homestead. when in fact there was never compliance with substantial absence written istent, bal attached or ex- otherwise Sayles’ Ann. under Vernon’s hence the essence the contract was ver- lien be fixed no can void; art. (2) St. and the contract the writ- homestead. on lien ten contract for the construction of @=>93 a new house to cost when in fact fob Liens —Contract Mechanics’ 6. Compliance enlarge repair thing done was to an old with Contract. Lien — improve- price (3) $1,400; for the contract, contractor on be- omissions Where unintentional, construed, cause the for was however and do whether ments whole, impair new house an a or the old the structure breached, completed, compensated from and the house for deduction only performance plaintiffs quantum the recovery, entitled to price, substantial meruit there is tract which was destructive of the lien.” Vernon’s entitles Sayles’ 5631. art. Civ. St. Ann. findings filed his The court fact Loan—Payment n =>47— Usury in In- law, conclusions stallments. appellants’ attacks the correctness of brief extending $1,400 company of loan Contract finding, adopt repaid findings loan, interest at fact $21.42, monthly payments usurious o.f made, which are as follows: thus face. on property controversy is now and was Rehearing. On I-Iarrop the homestead defendants and wife continuously during — all the @=>161(4) times Liens Attor- Mechanics’ ney’s The homestead their answer. residence on said Fees. Christmas, 1914, prior to consisted of a home- mechanic’s In foreclosure cottage occupied adjudged six-room frame used and as a attor- stead, not be for defendants; home time ney’s fees. destroyed by cottage of the house partially fire, the ro'o'f Court, Appeal Coun- District Denton being ceilings burned off and the being burned, leaving standing. Judge. Spencer, walls and ty; F.C. foundation Investment National Loan Suit application “The defendants made Mich., Company Detroit, Doretta plaintiff, the loan from the for executed the Judgment I-Iarrop for and others. mechanic’s lien note and contract to K. Ber- ry, set Bradley acted on, bond and deed trust sued appeal. and af- Reformed defendants of facts. out the statement That S. M. firmed. plaintiffs, solicited business hut agents Harrops taking as the their appellants. Dallas, Mluse, Muse & application plaintiff. note and contract at forwarding loan and it to the Syn- Penry, Worth, and J. of Ft. J. also wrote the He mechanic’s Dallas, appellee. nott, of instance of the con- topic @=>For Digests Key-Numbered see same other cases and KEY-NUMBERin all and Indexes *2 NATIONAL LOAN < n Tes.) INV. 'CO. HARROP Bradley fact, tractor, Berry, Harrop. ants’ counsel that such the ex is the to and A. H. tent that lien existed. the mechan- knew at the the time of execution by plaintiff “It is admitted the said de and ic’s lien residence condition of the homestead contract the fendants, facts, stated, as in and shown the statement as above said adopted, cent, $1,400 by Berry here that was to draw said loan was Har- advised said and A. H. interest, paid r'op drawing to the mechanic’s lien time of said $21.42, monthly' payments installments of which contract and that the was down old house to torn discharge $1,400 the loan with 6 the lumber therein used in the construction interest plaintiff thereon heroin to date the bond -the of the house for under the mechanic’s on; April 8, contract, that on lien and also the $600 advised that plaintiff $1,390 payable the to specified represented draft of in the contract valua- Exchange Harrop by Doretta and A. H. and tion house that was to be used in of the material in the old cashed, National Bank of indorsement of the defendants Denton was Berry K. and O. contract, the house that under and agreement thereon,-and by M. Brad between S. payment specified the cash tract, the material in the con- ley contractor, Harrop., Berry, and A. H. .the by appropriation was to be satisfied acquiesced placed by $1,390 Harrop, in Mrs. said by contractor, in the old house joint on said of A. date to the credit $1,400 comple- and that the lien of Harrop Exchange Bradley H. National Bank of and S. M. for; tion of the house contracted in fact Denton, 'and was to done, all of the labor and im- Berry upon out K. to his said contract on provements contractor, Berry, under joint Harrop. Bradley check S. M. and A. H. lien the mechanic’s contract was in re- representation This done pairing enlarging house, and ..the old which was practically completed, except house was in minor agreement Berry in fact between and A. H. details, Harrop stated and A. H. acquiesced' Harrop Harrop, and in Mrs. and contractor, Berry, Bradley, to S. M. and Berry agreed which specified to do for the sum of aggregating 511,- the checks offered in evidence contract, plaintiff nor signed jointly Harrop 390 were H. and A. knowledge S. M. had no of such actual Bradley, except thr$e, S. as to which agreement fact, and their was re- signed by Bradley himself, signing & M. and stricted to the terms of the mechanic’s lien con- Harrop Harrop?s the authority name A. as itself disclosed on the face in- of such do, payable so said to checks made to strument. No contract. The house new was built under the Berry and to such as 'he or directed to thing done was the and en- money whom was due for labor and material largement house, of the old and and the upon house, exhausting $1,390 deposit. plaintiff upon the relied and terms of having acquiesced “Said defendants in such contract were led believe that to the house deposit payment money of the and its to constructed was a new said con- joint aforesaid, checks as and Mrs. tract. having acquiesced therein, representa- and the plan specifications “The and referred to contractor, Berry, A. tions of H. being and lien contract mechanic’s were not Introduced completed, practically the house was specifi- evidence. The evidence showed that April, and the defendants in the latter writing, cations were never but were verbal. 1915, plaintiff moved and the was, however, plan There to of the house shown having acquired prior the mechanic’s note Bradley prepared by contractor, 3VL maturity, notwithstanding Mrs.’ Doretta Berry. specifications K. improvements O. verbal improve- Harrop did not the house or the agreed -were A. H. completed, estop- as ments defendants contractor, Berry, acquiesced and the Mrs. were ever shown and ped.” Harrop, plan specifications no written or From the found facts and the fur- above Mrs. A. H. Harrop, except completed, plan fact, found, a floor of the ther which the court agreed. to which she consented and plaintiff was an innocent holder for value improvements “The Ber- constructed K. C. assignee lien, of the mechanic’s and the court concluded ry under said mechanic’s were never completed in matter of law that as accordance with and Berry between said defend- deny fendants were the debt ants, them, actually made between and the plaintiff was entitled to completion, lacked $263 of its judgment. reasonable nec- reasonable cost essary completion Berry’s question by appellants’ to the [1] The first raised aforesaid. first is whether the failure to things contracted to be in the con- “The include the contract between improvements struction of the were substantial- ly and the contractor the in the answer of tne defendants and the breach of contract plans repair of the erected substantially Berry O. is also K. destroys pur the lien which said contract answer, except defendants’ as to said necessary $263. ports grant. given signed by The note complete it, which was sum of both recites: “The contractor bond to said de- given note is “This erection fendants, indorsed the defendants which was one-story rooms, frame house of of tain real seven cer- assigned Berry to the estate,” describing the land. plaintiff the mechanic’s note facts, duly as shown the statement and the the The mechanic’s lien ac- plaintiff became the holder and knowledged by appellants, provides prior maturity. mechanic’s note that: plaintiff transaction between the money by Berry, hereby one to borrow K. defendants was “The said O. defendants, agrees build, erect, and it was the intentions himself and binds money plaintiff struct, good, and the said defendants that workmanlike taking up manner, according plans me was to be used borrowed aforesaid, ownership Berry chanic’s lien K. O. and made a therefor part furnished plaintiff security one-story in the. lien was to vest frame house of this $1,400 loaned, upon” the the became the land described. seven rooms alleged in of all the lien owner and holder proceeds give then instrument This pleadings virtue of the and under grant and to that a failure the lien' 6y ’defend eoncéded mechánie’s'lien. 204 SOUTHWESTERN REPORTER binding up- the house shall not and executed a written defeat each, providing but such lien in favor the on shall exist house Should specified less built for the full amount agreed upon by parties; the amount of and between the *3 permissible under to show the house. such contract it would be Sayles’ 5631, understanding Oiv. what the verbal Vernon’s Tex. Article Stats., provides part in terms of agreement, in order to that: determine whether not the performed, contract, including material is or labor “When such such verbal repairs upon homestead, if erections the made complied Upon been with. man, thereof then to owner is a married fix party a breach either the other could sus- same it shall and to secure the lien contract, persons tain a be person suit on written and would who fur for the performed labor, nished material or fore be permitted agree- to show what the verbal per material is labor is furnished or ment was in order to establish the claimed formed, a contract in to make and enter into opinion, though breach. Hence we are writing, setting forth the terms which thereof, signed directly his shall be the owner and we point, been have cited to no cases in acknowledged- her, privily in as is investigation after considerable ” making sale a hoAestead. none, have found it was essential to validity of the contract between the Har- statute, in used the above rops vitality and the or to the to-wit, ferring thereof,” “setting forth the terms 5631, article su- evidently writing, pra, plans that the should be tial should construed to mean that essen- part included in and made a of the writ- of the contract conditions statement every ten contract. We have examined au- instrument, be included in thority by appellants appellee upon cited labor not the minute details involved'in the to many assignment, others, this and have performed to be fur- material single which, failed to find a decision our Phelps Sheldon, nished. In the case of v. opinion, contrary to the conclusion us (Mass.) 50, 659, Am. Pick. that a contract Dec. it was held appellants’ reached. Hence we overrule first uncertainty void assignment, second, and also the in- which agreed where the builder to construct a feed- question. volves the same er for a canal therein described appellants’ [2] Under third specified, amount ed what was and the contract itself stat- epurt urged foreclosing is the lien that the erred included, “every viz. meant and sued on the admit fetching kind work ter into the canal.” In 16 W. for connected wa- ted ic’s because the mechan Myer (Sup.) v. Fruin on its terms face contracted 868, that, S. it is held where a contract $2,- for the construction of a cost stipulated construction of a house 000, paid cash, $600 of which was to be that the work should be done secured to be the me plans specifications, the attached and a chanic’s lien. signment It is under this insisted as dispute part arose as how a of the work undisputed that the evidence shows done; might put should be dence a which was exhibited to the builder in evi- that contractor and the and the actual contract made between the plan contract, not attached to the was to him at the time he improve the old which had been explaining made the how the work partially burned, fact no new dispute should be done about which the sequently sub- built or constructed. The evi cited, These arose. cases are and. dence shows that the offered and many might others same effect be men- the contractor the lumber tioned, proposition supporting standing walls, and material a valid be entered into between foundation, etc., in lieu of the plans and the contractor where the the owner and and that such material was used writing, are not in al- Bielstein, contractor. Churchill v. 9 Tex. though the contract is evidenced a written 445, App. 392, S. Civ. 29 W. was held that plans instrument which refers to said and and impairment of the lien created or that, specifications, specifications plans and also where iginal agreement resulted where a husband writing and attached to and wife entered into a contract with a third part and made "a of the written evi- person, latter was to erect for aliunde the written contract dence is admis- dwelling explain them a on their homestead light sible der specifications, and shed un- they including him plans were to a certain amount the by therefor, payments, executing was intended promissory notes, him their should be done. It will noted while to one clause of Stating the contract that such notes the mechanic’s plans contract refers to the were to “negotiate furnished the con- be delivered so that he could for labor said them a tractor and makes material yet specifications dwelling house,” it does not that such sub- and the husband writing. orally Certainly, sequenty agreed shall be in with the contractor involved, deposit were to be were not a the owners that certain of the notes husband, contractor could ed in trust for said and that he and the have formulated LOAN NATIONAL Tex.) v. INV. CO. HARBOP judgment. The excluded the from the to furnish was of a value Murphy Williams, in the cases of equal used Tex. thereto that 124 building. Paschall v. Pioneer Ass’n contention is no There App. 102, salvage not used 47 S. house was old from the building; Woody, that it was and Walker v. repaired newor by appellants took 89 W. as sus are cited at which not of the value it; taining assign get the full bene- the contention made did not owners injured lay thereof; ment. These down the rule that cases do fit or that way by his cannot contractor or sue this Mrs. a fail The court found where there has been contractor. agreement, acquiesced ure and refusal representatives terms, nor its owner has been neither *4 knowledge thereof, any compelled Murphy complete In had actual it himself. knowledge Williams, supra, the terms their was restricted to it is said: of lien contract itself. “We the homestead the mechanic’s “No such lien can exist on compliance pro- the constitutional without vision. The debts of reasonably understand how can cannot this to which that kind appellants injury is contended that subjected provision allows homestead the shown, any right constructing or here ground denied are used ‘for work material only improvements when and for them salvage thereon¡’ If the for relief evidenced. writing of the the consent ‘contractedfor it for to the con- was worth tractor, sold wife,’ lien to secure such debt etc. the * * * for the uses to and was available is to be for declared ‘improvements plainly provided,’ put it, appellants which the latter the have thereon hereinbefore actually improvements use the means ground complaint. If it was not worth of Both the of and the upon work and material. received, way price in the of credit employment and material of the work certainly they cannot com- it are with' the homestead in compliance evident, It the lien. is thus made essential to only plain, plaintiff, it is shown agreement, whom given assignment therefore,, the for of notes that an private had no of this improvement yet price for an injury. has reason to claim is overruled. The rights the contractor of made and of existing passes no his contract therefore under per- right lien, fected contract. only to such but assignment appel [3-6] Under the fourth subsequent performance of the urge that, irrespective lants of other coming the lien existence of into The errors, because, doing depends upon erroneous that which of still contractor agreement No the contract. is to do court, improvements ns found con this, change lien thus can being completed, tracted lacked of only one which for is the and that contract and as the of the upon impose are allowed by the imposed than in no other way. can be entitled to recover upon prescribed conditions.” of the concurrence upon quantum meruit said above, quotation statement, in the The any alleged which was destructive change this,” agreement “No can to the effect thereunder; upon hence that no lien existed original agreement refers, etc., to the the homestead virtue of the mechanic’s and the owners between the on. The mechanic’s lien contract alleged agreement property, but to the by appellants provided: subsequently owners with'the improvements “That a failure to given purchaser herein the owners contracted for shall in- but in such event the in- the note not defeat such debtedness and stat under the We think to the contractor. upon, debtedness and lien and im- (article 5631, supra) will be fixed a lien ute provements shall exist in favor of contrac- only upon of the to the extent tor, assigns, price, his heirs and for said contract reasonably less such amount as performed would neces- labor sary completo improvements according opinion valid specifications.” to said the owners could be entered statutory We know of no or constitutional of which the com the terms contractor tractor to the against provision, inhibition this sort of house, except was to provision believe that such a is valid. Under plas painting papering or the or the assignee, it a or his valid, would not tering, etc., be a and that there would bring his action in the form completed premises to th«. bring but he could suit performed labor or the ma of the extent on the in which event the owner We construe this contract furnished. terial as tractor or furnish for by way election, would have the of cross-ac providing in case the con in effect tion, require specific performance, or to perform some the labor plead a deduction in amount of con of the material some fhe price to the extent of the sum neces of the the terms sary according performed the contract to its ma for the labor have a lien Doubtless, subject actually furnished, terms. were it not for the find to the terial ing' protection owner denying completed exceeding price. the contract payment terms, pleadings question not a had whether or credit should $263, of the defendants below allowed sum of been so been drawn as have (cid:127) assignment, is, pe? relief, for this this raised court would have 204 S.W.—56 REPORTER 204 SOUTHWESTERN placing assignment, haps, esced sixth under the raised joint upon check bank to be drawn out evidence which we not consider. The' purpose Bradley, her husband sent a shows check upon paying Berry $1,400, of the contract. covering it out to $1,390, the loan of ($10 But tend having we have been cited to no evidence been retained ing that Mrs. knew of to show expenses) take care of to S. some by Bradley agent been Bradley, statement claimed to have whom the court finds was by Harrop leading him made to house was to the effect in the transactions Bradley completed, upon up loan; making upon re of the covering due, ceipt drew a check the balance was, check it Berry that Mrs. knew been appellant Harrop,. placed had A. H. ¿hecks paid price. bank, the balance in the signed to be drawn out fact, Harrop himself that he knew Bradley, denied long purpose until after that paying one check the contractor as the Berry. Though ap been progressed. drawn favor of work The court finds that findings upon point pellants acquiesced court’s con in this action husband, they payment clude the joint do not conclude the of the amounts by occupying wife. A wife her hus It checks. is further found the court band a contract a house not constructed that A. H. stated to before erection, for its *5 the final was made to the con jointly person, estopped awith third practically is not tractor that the house was com deny performance pleted, to chall et ux. of the contract. Pas moved Savings Co., complaint v. Pioneer shortly Loan the house was made thereafter. No 102, App. 98, appellant S. W. writ 47 either that time I-Iarrop, denied. Nor would Mrs. tile that not been had fulfilled acquiescence, absence of her Harrop expressed to A. its terms. be to being her pleased, husband declined himself to well permit Judge Bradley Harrop to have some one complaint and Mr. Mrs. made no to examine the with a view call or contention that the contractor failed had ing on the perform bondsmen to finish the particular to until his contract particulars complaint September October, some time in Case, supra, perhaps made. held the Pasehall it was five months after had moved that, absence of a gotten substantial into the behind and after compliance building contract, with the installments to the homestead, on could fixed appellee company. The was re holding with this we give concur. But think quired we to for the fulfillment of a bond performance there was a substantial complaint of the the his time of contract. At the contract, though particulars in certain Bradley by Harrop mentioned comply contractor failed to to under house had fact that contractor was specifications. performance and of, Substantial bond, that, stated to him if compliance with, or substantial a con according been finished not performance, except tract is as to unsubstan (Bradley) he would have a specifications, omissions, tial compensation therefor, go Mr.- out and look at Davis the house and slight when the omissions are and unin see the con needed compensation pro tentional to for tract, substituted tan- have the would contractor’s bonds performance, prevent hardship it, men it not cost would a failure to recover that which is Harrops well replied a cent. to this done. Linch v. 23, Lumber Bradley “messing not want offer he did 208; White, 15 S. W. Johnson v. 174, 27 S. W. house. While around” his denied denied; writ Sheldon, App. Dickinson v. 146 Bradley’s testimony as to the matters refer Supp. 889, Div. 130 N. Y. 892. Such to, yet court was to find red authorized permissible relief is in a case where the de Bradley’s truth, statement was viations are unintentional, inadvertent or justi perhaps think he would we fied have been faith, not impair due to bad and do not finding appellants accepted whole, the structure aas but are remediable house in then condition as a fulfill doing damage parts without structure, to other ment of the on the of the con may injustice without be com tractor. But the court Mrs. effect found that pensated from deductions the con not im did house or provements price. completed. County, Littell v. tract Iowa, Webster 152 While a wife estopped, 426; she is when speak silent in a 131 N. W. 132 N. case posi Russell, not whore tive would amount to a 140 Div. 125 N. Smith v. fraud, yet prem mere 954; her silence in Caplinger, Supp. Mitchell v. 97 Ark. Y. 278, chargeable 1032; except Pippy Winslow, ises will not be her 62 133 suppression 298; Contracts, such silence or on where an innocent deceives Pac. Elliott Or. § person contracting seq. with refer 3603 et cases, many to her and she intends that it ence others As shown cited, Speer’s Rights might do so. Law of a contractor who
shall
Marital
be
and without
un-
which
intentionally
p.
(19113)
acqui
fails
The court finds that
she
bad-faith
v,
Tes.)
O’KEEFE
NIMMO
above-quoted
respects
the build-
Ass’n
W.
v.
94 Tex.
59 S.
871.
Phrases,
Series,
Misrep-
Second
Material
It was
the loan
ex
resentation).
'
appellee
repaid
Pleading
—
tended
would be
—
<&wkey;430(2)
2.
Variance
Waiver.
install
6
interest
94
lease,
plain-
although
In action
cancel
each, beginning
March
$21.42
ments of
petition alleged
tiff’s
representation,
without
by
his
to
of
that defendant made false
court did
the $10
1915. The
include
testimony
admitted
where
$1,400 by
objection
representation
retained out of the
presence
another in
and with
defendant’s
attorney’s fee,
appellant’s
but excluded
acquiescence,
objection as
defendant waived
amount,
also
variance;
going
variance
to substance
way
membership
in the associa
of a
fee
plaintiff’s
of action.
cause
Texas,
Pleading
L. & Inv.
96 S.
<&wkey;380
tion. Rabb v.
77;
W. 3.
—Variance.
plead
party
proof
Bank,
must first
Mortg.
A
facts which
Land
Martin v.
establish,
proof
offered tends to
before such
App. 167,