43 S.W. 277 | Tex. App. | 1897
Appellee W.T. Parks instituted this suit against Charles Tippie and appellant Henry D. Lindsley, to recover for material and labor used in the construction of a residence on lots Nos. *529 15 and 16 in block 136 in the Llano Improvement and Furnace Company's addition to the town of Llano, and to foreclose a mechanic's lien on said property.
Appellee's petition embraced two theories: one that he had a contract with both Tippie and Lindsley for the construction of the house; and the other, that, if Lindsley was not a party to the contract, he was estopped, by representations made to appellee, from denying that the lots belonged to Tippie and were free from any claim of his.
Tippie made no defense. Lindsley denied that he had made any contract with appellee, set up the fact that he had previously sold the lots to Tippie, retaining a vendor's lien secured by a deed of trust on the lots; that afterwards the trustee had sold the lots, and he, Lindsley, became the purchaser.
The court rendered judgment in favor of appellee against Tippie for the amount of his debt, and against both Tippie and Lindsley for a foreclosure of his mechanic's lien and for costs. Lindsley has appealed.
The case was tried without a jury, and no conclusions of fact and law were filed. The testimony shows that in the summer of 1892 Parks and Tippie entered into a contract for the erection of a building as alleged in plaintiff's petition; that the plaintiff furnished the material and built the house in accordance with the contract, and that Tippie owed the plaintiff a balance due therefor of $613.43 at the time the case was tried. It was also shown that the written contract remained in the possession of Tippie, and appellee was unable for that reason to file it for record, but that he instituted this suit within four months after the debt was due. It was further shown that, about the time the contract was made, Lindsley, who had previously owned the lots, executed a deed conveying them to Tippie, reserving a vendor's lien to secure certain unpaid purchase money for the lots. That at the same time Tippie executed a deed of trust conveying the lots to Philip Lindsley as trustee, to secure said unpaid purchase money, which deed of trust, together with the deed from appellant Henry D. Lindsley to Chas. Tippie, the transcript shows was filed for record September 26, 1892; but it does not appear in what county nor in what office said instruments were filed for record. The testimony further shows that Lindsley was not a party to the contract for the erection of the building. There was testimony tending to show that before appellee built the house Lindsley stated to him that the lots belonged to Tippie, and misled appellee and caused him to believe that Tippie had the right to make such contract in reference to building a house upon the lots as would create in appellee's favor a lien upon the house and lots superior to any claim that Lindsley might have. In other words, the representations referred to tended to produce the impression that Lindsley had no claim whatever upon the lots. The case has been on appeal once before (Parks v. Tippie, 34 Southwestern Reporter, 676), and it was then held under the facts above stated that appellee was not required to record his contract in order to secure or preserve his lien. *530
The trial amendment filed by appellee, and of the filing of which appellant complains, merely stated the value of the lots and of the house separately, and as the court held that both were subject to appellee's lien, and as that holding was correct, it was not necessary that the amendment should have been filed, and the ruling of the court in permitting it to be filed, after the parties had announced ready for trial, was harmless error, if error at all.
What has just been said concerning the amendment, answers the assignment of error which complains of the action of the court in overruling appellant's application for a continuance. The continuance was asked to enable appellant to obtain testimony to meet the issues raised by the trial amendment. These issues being immaterial, the court did not err in overruling the application for continuance.
Appellant has no assignment of error, charging that the judgment is not supported by the testimony on the theory of estoppel, and as there is testimony tending to support that theory and the court filed no conclusions of fact finding against appellee on that issue, we must decide the case upon the theory that appellant concedes the evidence to be against him on that issue. Walker v. Cole,
Appellant does charge, in his seventh assignment of error, that he was not shown to be a party to the contract for building the house, but he does not charge that the testimony fails to show that he made such representations to appellee concerning the lots as will in law estop him from asserting a claim thereto superior to the title held by Tippie at the time appellee made his contract with Tippie. If the court below had filed conclusions of fact, and had not found upon the issue of estoppel, or had found against appellee upon that issue, the case would be different; but the appellant, being content to bring the case to this court without any findings of fact by the trial court, and not having charged in his assignments of errors that the judgment is not supported upon either issue presented by the appellee's pleadings and evidence, and there being testimony tending to support the allegations of estoppel, we must treat the judgment as sustained by the testimony.
Although held not to be liable to appellee upon the issue of debt, appellant was a proper party to the suit upon the question of appellee's right to foreclose his lien, and the court having decided in his favor and against appellant upon that issue, it was proper to adjudge the costs against both Tippie and appellant.
We have considered all the questions presented in appellant's brief, and finding no reversible error, the judgment will be affirmed.
Affirmed.
Writ of error refused. *531