MATHEWS CONSTRUCTION COMPANY, INC., Appellant, v. JASPER HOUSING CONSTRUCTION CO. et al., Appellees.
No. 7658.
Court of Civil Appeals of Texas, Beaumont.
Sept. 25, 1975.
Rehearing Denied Oct. 16, 1975.
323
STEPHENSON, Justice.
Seale, Stover & Coffield, Adams & Adams, Jasper, for appellees.
STEPHENSON, Justice.
Mathews Construction Company, Inc., brought this action against Jasper Housing Construction Company (Jasper Housing), New Homes, Inc. (New Homes) and Fireman‘s Insurance Company (Fireman‘s). The pleadings sought recovery for labor and materials furnished, interest on bank loans, and attorneys’ fees. This appeal is from аn order granting motions for summary judgment filed by all three defendants.
In the judgment granting such motions, the trial court stated that plaintiff‘s claim for interest paid or owed to First National Bank of Jasper, Texas, and attorneys’ fees in connection with such interest claim, is based upon an oral promise and, therefore, barred by the Statute of Frauds and
“(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it is
“(1) in writing; and
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“(b) Subsection (a) of this section applies to
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“(2) a promise by one person to answer for the debt, default, or miscarriage of another person;”
In passing upon the points of error raised in this case, we are well aware of the rule stated in a series of cases in which our Supreme Court has held that the burden is upon the movant to establish, as a matter of law, that there is no genuine issue of fact. Gibbs v. General Motоrs Corporation, 450 S.W.2d 827 (Tex.1970). In the case before us, if the trial court was in error in holding the oral agreement unenforceable because of the Statute of Frauds, then there was a genuine issue of fact as to whether that oral agreement was made.
Plaintiff‘s allegations show it was a subcontractor to do the dirt work on a project in whiсh Jasper Housing was the prime contractor. The agreed price for such subcontract was $13,217.50. Plaintiff‘s work was completed, but the money was not paid. Plaintiff assigned its lien to the First National Bank of Jasper, Texas, and executed two notes in the total amount of $11,900.75. Jasper Housing guaranteed the payment of such notes, and did in fact pay the Bank $158.61 interest.
Plaintiff attached affidavits to its reply to the motion for summary judgment showing the following: that the work was completed under the subcontract, but the money was not paid. Richard Sarver, president of Jasper Housing, was contacted, and he suggested that plaintiff make a loan from the Bank for sixty days and that Jasper Housing would pay the intеrest. That the loan was made and Jasper Housing paid $158.61 as interest on such loan.
This point of error is controlled by the law expressed in Gulf Liquid Fertilizer Co. v. Titus, 163 Tex. 260, 354 S.W.2d 378 (1962). The oral agreement made by Jasper Housing to pay the interest upon the notes given by plaintiff to the bank is not barred by the Statute of Frauds. That case tells us we must apply three tests in order to determine that question. First:
“Was there a promise оf primary responsibility to pay, or was there a promise of suretyship?”
According to the summary judgment proof, this was not a promise made by Jasper Housing to the Bank to guarantee the payment of a debt owed by plaintiff to the Bank. This was a promise by Jasper Housing to plaintiff, to pay the interest on a loan by plaintiff from the Bank. Secоnd:
“Was there sufficient consideration to support the promise to pay?”
The summary judgment proof was that the money, due plaintiff by Jasper Housing, was past due; and in order to secure more time to make such payment, Jasper Housing agreed to pay the interest on the loan. Third:
“Was the consideration such as to remove the promise from the Statute of Frauds?”
In making the meaning of this third question clear, the Supreme Court at Page 386 quotes from 2 Corbin, Contracts (1950 Ed.) 284 § 368, partially as follows:
“‘In order to take his promise out of the statute, he [the promisor] must be bargaining for a consideration that is beneficial to himself and that constitutes his primary object of desire.‘” (Emphasis omitted.)
As stated above Jasper Housing agreed to pay the interest as a benefit to itself, in order to defer payment of its obligation. All these questions must be answered in the affirmative. It was error for the trial court to hold the oral agreement made by Jasper Housing to be barred by the Statute of Frauds.
Plaintiff argues that it is entitled to recover attorneys’ fees in connection with its claim of interest. The law is well settled that attorneys’ fees are not recoverable either in an action in tort or in a suit upon a contract unless provided by Statute or by contract between the parties. New Amsterdam Casualty Co. v. Texas Industries, Inc., 414 S.W.2d 914 (Tex.1967). There is no summary judgment proof that a contract provides fоr attorneys’ fees, and
Plaintiff has a point of error that it is entitled to collect attorneys’ fees because its pleadings show a cause of action based upon a sworn account. The pleadings and summary judgment proof in the cаse before us demonstrate that the suit is not founded upon a sworn account within the meaning of
Plaintiff cоntends that it is entitled to recover its attorneys’ fees under
“Any person, corporation, partnership, or other legal entity having a valid claim against a person or corporation for services rendered, labor done, material furnished, . . . may present the same to such persons or corporation . . . ; and if, at the expiration of 30 days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment . . . , he may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney‘s fees. . . .”
Tex.Rev.Civ.Stat.Ann. art. 2226 (Supp. 1971) (Emphasis supplied.)
At the outset we note that the 1971 amendment deleted the word “personal” from the phrase “for persоnal services rendered” and added the phrase “corporation, partnership, or other legal entity” to those “persons” who were entitled to collect attorneys’ fees under the statute in appropriate circumstances.
The jurisprudence of this State precludes us from concluding that the omission of the term “persоnal” from revised
Our Supreme Court has noted the distinction between the terms “servicеs” and “personal services” within the context of
“In ordinary usage the term “services” has a rather broad and general meaning. It includes generally any act performed for the benefit of another under some arrangement or agreement whereby such act was to have been performed. The general definition of “service” as given in Webster‘s New International Dictionary is “performance of labor for the benefit of another“; “act of instance of helping, or benefiting“. The term “personal service” indicates that the “act” done for the benefit of another is done personally by a particular individual.‘” Id., at 895 [quoting from Creameries of America v. Industrial Commission, 98 Utah 571, 102 P.2d 300, 304 (1940)].
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“““Services” and “personal services” are not definitely coextensive. Within the meaning of statutes such as that now under consideration and of exemption statutes, “services” may be rendered though the actual labor be performed by one‘s employees and by means of his machinery or other equipment, but “personal services” are those performed by the individual himself.” Id., at 895-896, [quoting from Levitt v. Faber, 20 Cal.App. Supp.2d 758, 65 P.2d 498, 500 (1937)] (Emphasis ours)
We see no reason to refuse the application of the definitions which have been approved by our Supreme Court, and we hereby adopt them. As was stated in Clark Advertising Agency, Inc. v. Tice, 490 F.2d 834 (5th Cir. 1974):
“There is no doubt that, in changing ‘personal services’ to ‘services,’ the legislature was broadening the coverage of the statute. Thus, despite the oft-repeated assertion that the statute is penal and should be construed narrowly, Van Zandt v. Fort Worth Press, supra; W. G. Tufts and Son v. Herider Farms, Inc., Tex.Civ.App.1972, 485 S.W.2d 300, we hold that it is broad enough to cover actions on contracts for the sort of advertising and promotional services provided herе [whereby the agency was to supply advertising services for a horse race], even though many of those services were not provided by Clark personally but rather by the various advertising and broadcast media retained by him. These services were certainly actions that furthered the end or purpose of promoting the West Palm Beach race, benefiting the A.H.R.A. They clearly fall within the broad and general definition of ‘services’ as propounded by the Texas Supreme Court.” Id. at 838.
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“The amendment apparently changes the result of Tenneco Oil Co. v. Padre Drilling Co. . . . . We think the Texas legislature, in amending the statute to delete the requirement that the services need be ‘personal,’ was adopting the broad meaning of ‘services’ first spelled out by the Texas Supreme Court in Van Zandt v. Fort Worth Press.” Id. at 837.
See also Texcalco, Inc. v. McMillan, 524 S.W.2d 405 (Tex. Civ. App., Eastland 1975, no writ) and Caston v. Texas Power & Light Co., 501 S.W.2d 472 (Tex.Civ.App., Texarkana 1973, no writ), and Maxwell Lumber Co. v. Merle Greer Company, Inc., 501 S.W.2d 454 (Tex.Civ.App., Tyler 1973, no writ).
We hold that when plaintiff performed the ground preparation work for the defendant, it was ostensibly performing a “service” as that term is now defined above and that as such, it should have been аllowed to present evidence to support that contention to the trier of fact. It was error for the trial court to have granted defendant‘s motion for summary judgment on the issue of attorneys’ fees. Finding that plaintiff should have been allowed to present evidence on the issue of “services rendered“, we make no ruling on the question оf whether plaintiff‘s claim for attorneys’ fees also comes under the definition of “labor done” or “materials furnished.”
Plaintiff‘s original petition was filed on March 27, 1973; the amended petition was filed on July 8, 1974. The trial court found that the plaintiff had made no claim on the payment bond prior to filing its first amended petition which was more than fourteen months after the proper notices were given. Fireman‘s was made a party to this suit in the original petition; it was in its original pеtition that the plaintiff asserted that the bond in question was defective. The amended petition apparently accepted the bond and a specific claim was then made against the bond itself which was more than fourteen months after the “perfection” date.
Whether limitations should apply to amended pleadings is governed by
We do not have the situation which was present in Sherwin-Williams Co. v. American Indemnity Co., 504 S.W.2d 400 (Tex. 1973). There the plaintiff filed its original pleading in a statutory lien suit against the owner, original contractor, and subcontractor. The surety on the bond was not named until the amended original petition was filed, which was after the fourteen months period established in
In the case at bar, Fireman‘s was named and joined in the suit when the original petition was filed. The gravamen of the complaint was that plaintiff had perfected its claim under mechanics’ and materialmen‘s lien statutes and was thus entitled to recover from the parties named as defendants jointly аnd severally. The complaint in the amended petition was not based on a “new, distinct or different transaction or occurrence“. See also John H. Pelt Co. v. American Cas. Co. of Reading, Pa., 513 S.W.2d 128 (Tex.Civ.App., Dallas 1974, writ ref‘d n. r. e.).
As mentioned above, in order for plaintiff to succeed in its claim it must have complied with the provisions of the Hardeman Act. One of the requirements in perfecting a lien is the filing of an affidavit under
c. “A general statement of the kind of work done or materials furnished by him, or both. It shall not be necessary to set forth the individual items or work done or materials furnished or specifically fabricated. Any abbreviations or symbols customary in the tradе may be used.” (Emphasis supplied.)
The attached contracts contain statements that the plaintiff was to haul various types of sand, gravel and hot mix, that it was to grade the streets and parking area in preparation for paving and that the respective price on the two contracts for the labor performed and the matеrials furnished was $2,000 and $11,217.50.
Prior to the time that the 1961 amendment to
“[I]t had been held [prior to 1961] that the notice to the owner, as well as the lien affidavit filed by the claimant with the county clerk, must itemize the value of articles furnished and labor done, and that a statement of the total price in a lump sum was not sufficient. [Citation omitted.] The language on which [appellee] relies was plainly intеnded to eliminate the need for such particularization. Paragraph c of Article 5455 eliminates the need for such itemization in the affidavit.”
The information contained in the contracts was sufficiently detailed so as to enumerate the claims that plaintiff was alleging under the lien statutes. It was a “general statement“—and no more is required under the present statutes. These points of error are sustained.
Reversed and remanded.
KEITH, Justice (concurring).
I concur only in the reversal and remand of the cause.