*1 sitting. CRAMER, J., not
¡On Rehearing Motion for original appear in inaccuracies Several corrected; hereby are
opinion that (1) On the result: affecting, language 494], the S.W.2d page four [269 of Cleo non obstante motion to effect Said is withdrawn. sustained Hamilton appel- favor obstante non upon the court’s own consequent lee was law, estoppel, grounded conclusion the “re- quoted recitals of shown disputed (2) judgment”. formed voluntary) (though partition Hamilton.” B. instance of W. at the “was Mrs. conversation related (3) John Mary Hamilton Lou D. Mitchell ob- court excluded indeed from the expressly deleted jection, and is Otherwise, motion re-
opinion. respects overruled. is in all
hearing et ux.
MAGEE COAL CO. N. WOOD &
I. & G.
No. 12566. Appeals of Texas. Civil
Court Antonio.
San
April 1954. May 19,
Rehearing Denied
499 G. Company, by N.-Wood and Coal writ ten assignment, bearing date of June 1950¡ The note was also indorsed Blank and Cude. progressed that as the work
upon the dwelling house called for in the materialman’s and mechanic’s lien con- tract, I. and G. N. Wood and Coal Com- pany furnished- materials and advanced monies payrolls to meet the of Blank and Cude.
The case was jury upon special tried to a issues, many inquire of which about mat- concerning ters which there was no dis- pute in the findings evidence. Such jury as are to an understanding disposition of our of the case are as fol- lows :
Question you No. 5: pre- Do find from a ponderance of the evidence that P. H. Blank D. N. Cude constructed im- Bennett, Remy, Bums, Forrest A. provements on Joseph the land of Ma- P. Antonio, appellants. Schiller, San gee, Jr., wife, Magee, Wanda F. Palmer, Oliver, W. Edward W. Herbert compliance substantial plans with the appellee. Antonio, for Penshorn, San W. specifications question? Answer: No. Question No, you 6: Do find from a NORVELL, Justice. preponderance of the evidence that building the house that deviations from the This is suit plans orally were agreed promissory note a foreclosure of a with defendant, Joseph P. Magee/Jr.? mechanic’s lien materialman’s and Answer: No. prin- The note was for the a homestead. $10,447, May cipal dated sum of Question you No. 9: Do . find from a days on or before after date. and due preponderance of the evidence that by Joseph Magee, Jr., executed P. It was construction of the question house in was payable Magee, F. and Wanda performed in a workmanlike manner? An- Blánk and H. D. M. order of' P. Cude. swer : No. 10, 1950, Magee May and wife also On Question you No. 12: Do find from a materialman’s into a and mechan entered preponderance of the evidence that .the fully hereinafter ic’s more house built Blank and Cude for the described, it, wherein that Magees can be comply remedied'to the, a dwell and Cude Blank construct plans specifications? Answer: No. by Magees, lots owned ing house I., specifica certain according to also found that The. and G. N. therefor, that in return the Ma- Wood and Company tions and Coal had advanced to pay to Blank and Cude the sum would Cude gees $6,000 sum , represented by labor, $10,447.00, A note. and'material $3,300, worth in con- given lien was also trust .’to se nection deed construction on the Magee ; payment ’-note, property of this note. (Special cure the 7) Issue' No. the' and'mechanic’s :lien deed' cash materialman’s value of the-house reasonable actually, value, constructed, lien were all transferred to I. and -trust exclusive of the. purchaser Dis- Nos. 8 nocent for value thereof. Issues land, $12,000 (Special first, cussing question pleading, con- been house had the 14), and *3 speci- appears copy at- that a the was plans and note according to the structed petition although tached the trial and the have been to would upon it fications allegations IS). (It pleadings of the are in the not Issue No. (Special $17,000 worth employed asserting the usual form in the claim portion of appears that substantial purchaser, opin- of innocent we are of di- the was furnished building materials used they ion that are the also sufficient. Under rectly appellants.) by provisions Negotiable Instruments preponderance find from failed to Act, Article Wood and Ann.Civ. G. Vernon’s § and N. “that the I. evidence Stats., “every prima holder furnishing ma- is deemed from Company, aside Coal course”, facie to abe holder due with Blank in and together terials, working were seeking that an issue construction overthrow in the actual and Cude presumption this 16). No. was submitted to Issue question” (Special in house jury Special 16, Issue No. men- above — ren- findings the trial court Upon these tioned. as follows: judgment dered The contention that the note not ne- was (cid:127) Wood and and G. N. favor of I. (a) In gotiable is based the fact that it con- Joseph P. Ma- against Company and Coal following tained the recitation: makers Magee, as F. Jr., and Wanda gee, “Payment D. N. Cude P. and hereof is secured H. build- against indorsers, full amount of the er’s and mechanic’s lien and for deed of as trust upon, following with accrued in- lien together described note sued real amounting $12,707.61. County, Texas, estate in Bexar thereon terest to-wit: the materialman’s and Foreclosing (b) 21, 3, trust 20 and deed of “Lots lien and Block mechanic’s Oakland Estates, sum an property City insofar as the addition to against of San description Antonio, County, (The Texas, Bexar
$9,300 concerned. ac-> corrected, plat cording but there also thereof property was in recorded 980, action.) page 281, Vol. dispute as to this Plat Records of is no County, Bexar Texas. Providing if Blank and Cude that (c) pay any part given required “This note in payment were lumber, against them and building rendered material judgment and labor payees, to be furnished against Magees, in ac- such Magees for cordance with the contract over and of even herewith, $4,300, the sum of date sums, to exceed same to be in the used improvements construction of certain however. makers hereof on the above de- $1,- Providing for the (d) premises property.” scribed (The provided by attorney’s fees as 077.95 block number should have been 6 rath- note. er description than wife, Jr., Magee, Wanda Joseph P. by the decree, corrected court in the ,* appellants to as will be referred Magee, F. as heretofore indicated.) Company, and Coal N. Wood I. and G. Negotiable Act, Instruments Arti- will while Blank Cude appellee, provides cle unqualified “An by name. referred promise order or is unconditional within the meaning Act, of this Appellants contend that the court though * * * coupled with: appellee 2. A allowing to recover on statement erred gives the transaction which negotiable of note, the same was not a rise instrument; that, alternative, This statutory instrument, pro- vision was considered in plead it was an failed in- connection appellee in- “That in construc- similar contractual clause tion of the here, Bank house the defendants Nat. volved Continental defendants, 214 Blank Conner, 147 Tex. and Cude Worth v. Ft. Joseph Jr., wife, upon authority Magee, of that P. Wanda S.W.2d Magee, up- plaintiff expended sued there- the instrument we hold that for in and that labor and material sum of instrument negotiable was a appellee $10,360.19, $3,854.92 divided thus: awarding was no error there $6,505.27 for materials and principal, interest cash for thereon payrolls; the actual attorney’s reasonable fees. *4 cash market value of the materials so however, is question, A different furnished sum charged was the above validity the lien presented as paid and the actual cash for labor in Ordinari against asserted the homestead. the construction of said house was of upon en ly, a is also recovering one note the reasonable value of the above sum securing forth, titled to foreclosure of lien set and aggregate that the payment thereof, by the case as illustrated the above items two is the sum of However, a must be distinction $10,360.19. cited. 16, 50, the Con when Article drawn § sayd event, “Plaintiff that in the for stitution, St., involved. Vernon’s Ann. is reason, any it should not be entitled pointed Murphy Williams, 103 As out in note, to recover its plaintiff on then 124 an innocent Tex. S.W. sayd it is entitled to purchaser of notes “would be entitled the defendants Magees and any might benefit lien that exist on that are bound and liable to this them, the homestead secure but whether plaintiff $10,360.19.” for said sum of depend up not such exists or a lien must gives the effect which the law on If this pleading construed as setting improvement what contract for and quantum up a meruit count nothing and done such can ex under it. No lien more, then the patently asserted in- compliance ist on the without homestead valid. provision.” the constitutional with Article of the pro- Constitution § respective In order make clear the vides that: parties, positions certain occur- “The family be, homestead a shall place which court rences took be- hereby protected and is from forced Appellee’s low be mentioned. sale, payment for the except of all debts original petition amended declared purchase thereof, money or note, materialman’s mechanic’s lien purchase money, such the taxes alleged deed of It was trust lien. thereon, due or for work and material Cude, their Blank with constructing improvements used appellants, “constructed said contract thereon, and in this last only improvements, furnished the la- when the work and material are con- respect every and in materials bor writing, tracted for in complied Appellants with said contract.” by affirmatively pleading that answered In the of jury face findings to the comply with and Cude failed effect that there was no substantial com plans specifications pliance contract; with the that the con parties and contended the contract was struction of the house performed was not substantially performed. manner, in a workmanlike and that the de During trial, appellee fects house can the course of the not be remedied to comply petition was allowed to amend its contained in dispute much
there is to the effect there- there can be no recovery pertinent agreement. We set the written therefore out the of. It is elementary law “there thereof: is an parts obligation 502 provided by fail second substantially thereof to be dr'con- perform party, party or nevertheless' second terms of according to tire struction said indebtedness shall other holder of party have can agreement before n Building subsisting lien as- 22,. have valid and action.” right' of Am.Jur. full amount Contracts, above set out and Construction less such amount said indebtedness upon a be had Similarly, can reasonably necessary com- would be Murphy v. In Wil quantum basis. meruit plete improvements according to- liams, Su S.W. 103 Tex. parties agreement between the preme said: Court hereto, extent full materials and labor furnished' prescribe does not “The Constitution placed upon the described above or substance the form larger shall be the property, whichever says stated, but when than it. further amount;' provided further made must be a contract improvements should said fail to be material, the lien and that work *5 completed according agreement to the thereon, improvement for an to be hereto, parties any between the then improve- contemplates that the- plainly assignee holder of said indebted- material, ment, as the the work or preference shall have the ness and liens furnished, be, may is must complete option im- right and said pre- has that which in substance be provements according agreement to the upon; it fol- viously agreed been hereto, parties in behalf between the by agree- met an is not lows that this party, of second and when im- specified of con- for a house a ment provements completed are the liens so . only furnishing of struction, the perfected as above out shall be set entering material the of work full of the ámount said indebtedness.” Williams into such construction. (Italics particular indicate the clause the contract the notes before bought involved.) depended performed, and his by Arend performance either upon the in the clause contract above The .which had of that Arend or himself legal alter the situation. set out does not perfect create to dó to or undertaken recovery provides' that a constitution position respect is it his it. With constructing" material used in for work and be.” A'rend’swould better than improvements upon may a homestead be make more the trial It difficult to is only “when the work and had material are quantum meruit than a mere amendment writing". in contracted for Article §- judge, con- The trial count. the “The Constitution. essential' provi- invoking a contractual it as sidered or statement of the conditions materialman’s and contained sion in be included written instru which was attached lien contract mechanic’s ment,” Harrop v. National Loan & Inv. original amended exhibit as.an Co., Tex.Civ.App., 204 S.W. and’
petition. in “the contract must some fashion describe improvement specify of the the nature preparing in used con- A form work to be done the cost of and the char appears foliowing in tract, supplied material to acter of thereunder. thereof: portion printed objects requirement One of the as to- expressly joinder understood further of the wife is the apprising is her “It improve- improve that should the character and cost agreed (cid:127) for fail for Homesteads, contracted herein ment.” ments Tex.Jur. n -- Essentially question completed according whether reason n quantum parties recovery recovery- meruit is a between a agreement the' upon written It is material a contract.. claimed hereto, should ail of the upon quantum- recovery erection a a basis- "used meruit be' labor and. the holder purporting time clause to allow the same can 'be considered at con of the full necessary written indebtedness to recover recovery upon “to extent tract, contains and labor the written contract materials because placed upon in the event furnished and the above de- which a clause states recovery is, itself, property” pat- standing scribed non-performance the contract ently full invalid constitu- “to the when tested may be awarded nevertheless provision. actually tional in connection Considered and labor extent of the material * context, with its it is in the nature of a placed furnished and and, “joker.” alongside of to a a build property.” The contract states extent, intermingled legiti- certain with a may written terms er recover under its providing mate clause can not stipulations, event he price, less the amount may in effect recover so recover he complete work when the contractor question quantum raises the meruit. This Harrop makes default. National Loan stipulation that a contractual of whether Co., Tex.Civ.App., 204 878. The meruit, Inv. S.W. upon quantum may one validity provision of this latter has been re- speak, meet the con so to sufficient upheld, peatedly proper- as the owner for a written con requirements stitutional ty gets under such formula what he con- be like tract. We think not. It would price pay. for at the tracted he In that, provided “This is which a contract case, however, we have a fix- parties written contract which the foreclosing a lien a home- ing agree writing that the home owner hereto pay appel- stead to for a house which the here for all work and materials shall *6 buy lants never contracted to and construct- upon orally writing and-not in agreed after ed of materials which did contract not agrees home owner further in writ and the use, and constructed in a manner not con- specifications plans ing the for tractually acceptable to “It is them. hard to the construction will be the see how one who has done work or fur- A writing.” and not in con orally future any nished materials without contractual writing. not in either in writing tract is compensation right to can be entitled to Recovery job is on a construction either a from defendant who has been a written contract or an un reason of guilty fault, of no a sum in excess both of Quantum recovery written meruit one. what he contracted to and of recovery upon written is a other than a which he 5 benefit has received.” Williston 4149, on Contracts 1485. A clause which § quantum on a right The to recover alone, invalid standing is when considered partial performance meruit in case of certainly given a can not be the effect of independ- is not force of the contract but overriding dominating every other 610, Smith, Tex. provision ent of it. Childress v. 90 the of contract. S18, reversing 40 38 S.W. S.W. Smith, Tex.Civ.App., 37 v. S.W. Childress It is a cardinal rule of construction that, “an agreement interpreted should be 1076; Savings & Loan Paschall v. Pioneer a meaning gathered as whole and the from Tex.Civ.App. 98; Ass’n, 47 19 S.W. content, particular the entire and not from 235; 410, Contracts, C.J.S., 17 10 § Tex.Jur. words, phrases, or clauses.” 12 Am.Jur. Contracts, p. 1203. § 772, Contracts, 241. It that the involved, contract here among other prove things, he to recover must the builder For provides that, Party (Blank “Second he has a Constitution that written under n Cude), for the , Recovery theory considerations under a hereinafter of contract. (a is an abandonment mentioned note for meruit of the- $10,447.00), a quantum cove recovery agrees on written nants and contract. to furnish ory supply Therefore, under all Material and Labor there is to be used in the construction and erection of contract. certain im- written it some hereby might appear afford examination party second wMch provements, position. support appellee’s A careful build, construct agrees to contracts reading opinion, discloses party, complete, opin- Jones, writing the that Chief specifications mtd plans heretofore Justice term, Court, parties for the Dallas uses ion and between agreed upon placed identified, improvement on the plans a/nd “value of the hereto, now equivalent premises,” being as dif- to and made hereby specifications referred herein, price and the ference between the contract written ftdly as if hereof necessary complete amount the contract in detail hereto, out or set attached appar- in accordance with its terms. This provision of This jury’s findings, reading ent from a of -the Are we now out. carried was not opinion. wholly ineffec- set The note was out say it rendered The found “the reasonable buried trick clause 'by $550. of a tive reason improve- making we to set and cost of printed Are from? within comply specifica- plans ments essence aside matters lien was tions was sum of $250.” —and contract — $300, construc- held to be valid to the extent of strained give predominance authority Harrop would National Loan particular clause which v. tion of a Co., Tex.Civ.App., in effect? Inv. S.W. agreement unilateral render may provision precedent relating be is no sound the entire think .there We extent of the lien event of non- such construction. completion of work out in the set Loan & Harrop National The case opinion, is certain that the Co., Tex.Civ.App., 204 S.W. Inv. disregard court did not override and appellee’s position. support does not agreement paid. fixing price to A follows: involved reads as clause there purpose destroying pro- this contractual “ complete the im- a failure to ‘That fairly vision can not attributed to for shall provements herein contracted Justice, learned Chief for we find him lien, indebtedness such not defeat stating in Galbraith-Foxworth Lumber Co. *7 and indebtedness event the in such long, Tex.Civ.App., v. S.W.2d improve- premises and upon said lien rights an one essential of owner said con- in favor of shall exist ments contracting building for the erection of the assigns, for said tractor, and his heirs completed is to have the within price, amount less such contract time, agreed upon by and at the cost necessary to com- reasonably would be parties. improvements according plete said ” point up The specifications.’ and Bell case a funda seems to types mental distinction between two of out, pointed this under As heretofore substantially comply failure with a build contracting owner is entitled clause, the ing type contract. failure is illus One of price at contracted for he what to 'receive by Murphy Williams, 103 trated v. Tex. Practically pay. all agreed to which he 900, 901, 124 S.W. where “the work sup by appellee in cited the authorities of material, supplied, far as and so done and in accord with the position are port its of compliance were in with the contract.” the identical and construe Harrop case type place The other of failure takes when provision. Robin contractual a similar building is which constructed is substan Tex.Civ.App., Leach, 237 S.W.2d son v. tially different in character as well as value Lumber Co. v. 366; Galbraith-Foxworth for, is, that contracted from “the 162; Tex.Civ.App., 5 North S.W.2d Long, thing had contracted one owner and Bell, Loan Ass’n Building & American had been type furnished.” This another 633. Tex.Civ.App., 88 S.W.2d failure illustrated of Paschall v. Ass’n, emphasis upon Savings Loan places particular Pioneer 19 Tex. Appellee superficial Civ.App. cited, 47 S.W. which is and com- the last complaint in Court. cient is made Murphy v. Williams. upon in xnented Error, 363, Appeal 3-A belonged Bell case in the failure Tex.Jur. Perform mentioned. classification findings of Under the went, ance, it far as so facts, portion undisputed appears that the as to estimate hence an with N. awarding I. and G. judgment of could completing the contract cost Company a Wood and Coal charges thus, by adjustment of an made against Jr., F. Joseph Magee, P. Wanda offsets, receive the owner could Cude, Magee, P. H. and D. H. price hé contracted at building he $12,707.61, attorney’s in fees the sum pres pay. The failure contract to $1,077.95,together with interest thereon type. case, was of the second ent per per at the rate of cent annum from six supporting findings above The evidence December be affirmed and credit, in view of must which we set out accordingly it is so ordered. In all other action, failure jury’s shows that the respects, appealed judgment from is impossi resulting performance and the Judgment reversed and vacated. is here rebuilding, performance, bility of short decreeing rendered the asserted material- and unauthorized lies in the unwarranted lien man’s mechanic’s and deed of trust mate inferior and different substitution of appellants’ against lien homestead to void plans and for those called for rials This no effect. action renders that were made which below, portion decree of the court parties. by the the contract awarding a reformation of the material- upon a not rest judgment here does man’s and mechanic’s lien im- in accord partial performance which was material. went, -it contract insofar as ance and untenable the bald but rather part, .in Affirmed reversed and rendered by the appellants were proposition that part. accept pay for obligated and labor as the contractors such material MURRAY, (dissent- W. Chief O. Justice plight furnish. decide to ' n ' (cid:127) ing). valid recognizing A opinion I do not concur foreclosing the asserted majority. Joseph Jr., Magee, P. and his incompatible wholly homestead wife, Magee, agreed Wanda in writing, F. are created for jury’s findings. Courts substance, that in event the holder *8 contracts, they if purpose enforcing or holders of the indebtedness should have enforcement, they denying if legal, subsisting valid and lien for the full they make illegal, can not contracts (cid:127)be actually of material labor fur- amount contracting for a mod parties. A man nished in the construction of their home. pay cottage can not be made est This written contract meets all re- mansion, judicial tribunal thinks because a 16, 50, quirements of Article Section him, nor should a man be suitable for Texas Constitution and Art. Ver- accept and different required to inferior Ann.Civ.Stats., and non’s should be en- workmanship has when he materials and Tex.Jur., pp. as written. forced findings as to contracted otherwise. 323; North American Building & constructed, the house the value of Bell, 88 Loan Ass’n v. S.W.2d 633. had it been con compared to the value Magees will Otherwise receive a with the structed house, case, found worth issue
are immaterial $12,000, Ass’n, required for which cannot be Savings & Loan Pioneer Paschall clearly one cent. This would except con- Tex.Civ.App. 47 S.W. unjust I enrichment. think the damages judg- stitute appellant’s action of, the trial court should be Cude, concerning which effi- ment affirmed. Blank and