124 S.W. 900 | Tex. | 1910
This writ of error was granted to bring up for review a judgment of the Court of Civil Appeals affirming a judgment of the District Court establishing and foreclosing in favor of defendant in error a lien upon the homestead of the plaintiffs in error. A motion to dismiss the writ of error has been filed in this court on the ground that the petition and bond given for the writ of error from the District Court to the Court of Civil Appeals misdescribe the judgment in giving its date as April 4, when its true date, as shown by the record, is April 1, 1908. All such objections to irregularities in the proceedings, which do not render them void and entirely defeat the jurisdiction of the Appellate Court, are waived by the failure to move to dismiss the appeal, or writ of error, in the Court of Civil Appeals. (Williams v. Wiley,
The facts of the case will be found fully stated in the opinion of the Court of Civil Appeals. Murphy v. Williams,
The plaintiffs in error made a contract with one Arend by which the latter, for the stipulated price of $3,200, agreed to build a house upon a lot which was the homestead of the Murphys, who agreed to and did execute to Arend their three promissory notes to cover such price. At the same time it was understood that Arend, in order to get money to enable him to build the house, should assign the notes to Williams, and a stipulation to that effect was inserted in the contract, which further provided that the lien, which it gave upon the homestead and upon three other lots as security, could only be released by Williams. This contract was properly executed by Murphy and wife in accordance with the constitutional provision. The notes were at once assigned to Williams who paid Arend $2,300 upon them. Arend entered upon and did a large part of the construction, expending for labor and material more than $2,100, but, without any reason or excuse stated, abandoned the work before it was completed, so that there was no substantial performance of his undertaking. Murphy thereupon demanded of Williams that he complete the building and, after his refusal to do so, caused the work to be done at a cost of $1,550. Williams sought by this action a judgment for the full amount of the notes and for a foreclosure of the lien for that amount upon the homestead as well as upon the other lots, for all of which the judgment before us was rendered, except that it allows a lien upon the homestead for only the sum of $1,650, the difference between the contract price and the cost to Murphy of completing the building left unfinished by Arend. It is this last feature of the judgment that is attacked as erroneous in the specifications in the application for writ of error upon which it was granted. The Court of Civil Appeals conceded, upon the authority of Paschall *158
v. Pioneer Savings Loan Co., 19 Texas Civ. App. 102[
There is a class of cases in which building contracts have stipulated for the right of owners, upon default of contractors, to complete the work and deduct the cost of completion from the contract price, in which it is held that, where the owners have elected to enforce the contracts by so proceeding under them, they become responsible to defaulting contractors, who have done part of the work, *159
for the balance of the contract price remaining after deducting the cost of completion and any damages sustained by the owner from the default. (Vanchief v. Van Vechten,
We therefore agree with the Court of Civil Appeals that Arend had no lien upon the homestead to secure the value of the labor and material which he put into the building. That court thought the case was different as to Williams, but we are unable to concur in that opinion. Williams may be an innocent purchaser of the notes, so that no defense against them can be made available by Murphy, the only person liable upon them. As such purchaser he would be entitled to the benefit of any lien that might exist on the homestead to secure them, but whether or not such a lien exists must depend upon the effect which the law gives to the contract for the improvement and what was done under it. No such lien can exist on the homestead without compliance with the constitutional provision. The debts of this kind to which that provision allows the homestead to be subjected are, "for work and material used in constructing improvements thereon," and for them only when "contracted for in writing with the consent of the wife," etc. And the lien to secure such debt is declared to be for . . . "improvements thereon as hereinbefore provided," which plainly means, improvements actually made by the use of the work and material. Both the contract and the employment of the work and material upon the homestead in compliance with it are thus made essential to the lien. It is evident, therefore, that an assignment of notes given for the price to be paid for an improvement yet to be made and of the rights of the contractor under his contract therefor, passes no existing lien, but only the right to such as may be perfected by the subsequent performance of the contract. The coming into existence of the lien still depends upon the doing of that which the contractor is to do under the contract. No agreement can change this, because the lien thus provided for is the only one which the parties are allowed to impose upon the homestead, and it can be imposed in no other way than by the concurrence of the prescribed conditions. Although the contract had been made when Williams bought the notes and he acquired the right to look for security to such lien as might arise from the making of the improvement in future, it was still essential to the perfecting of that lien that Arend's contract be performed, and hence *160 it could not vest in Williams, any more than it could vest in Arend, without such performance. To fall back upon the agreement that Williams should buy the notes and have the lien merely begs the question. No agreement with Williams, or for his benefit, could give rise to a lien upon the homestead without a contract for the work and material and the performance thereof. The requirement that the work and material to be put into an improvement be first contracted for, necessarily implies that it is that which is contracted for that is to be done in order to give the lien, and that the doing of that which is substantially less than, or different from, the thing so contracted for does not meet the requirement. The Constitution does not prescribe the form or substance of the contract further than stated, but when it says that a contract must be made for the work and material, and that the lien is to be for an improvement thereon, it plainly contemplates that the improvement, or the work and material, as the case may be, that is furnished, must be, in substance, that which has previously been agreed upon; and it follows that this is not met by an agreement for a house of a specified construction and the furnishing of only part of the work and material entering into such construction. Williams bought the notes before the contract was performed and his lien depended upon the performance either by Arend or himself of that which Arend had undertaken to do to create or perfect it With respect to it his position is no better than Arend's would be.
This case not like those cited by the Court of Civil Appeals. Downard v. National Loan Co., 22 Texas Civ. App. 570[
The judgment will be reversed and reformed so as to deny plaintiff's claim of lien on the homestead. In other respects it will be affirmed.
Affirmed in part; Reversed and rendered in part.