228 S.W. 558 | Tex. Comm'n App. | 1921
This action was initiated by the defendant in error Kelsay Lumber
Plaintiff based its demand against Rotsky upon an equitable assignment to it by Helm of sufficient of the contract price to cover its account, charged to have been given verbally May 28,1912, also on Rotsky’s personal promise to answer for Helm’s obligation, and in virtue of a materialman’s lien fixed upon the property of Rotsky. Plaintiff undertook to hold the deposit company by reason of its bonds of assurance for performance of the building contracts by Plelm.
Rotsky also by cross-action sought to hold the bond company for penalties for failure of contractor to complete buildings within time specified in the contracts, and also for any amounts which he might have to pay, not only by reason of plaintiff’s suit, but upon other claims which he impleaded for adjudication.
The deposit company claimed that it had been released because of a violation of the contracts by Rcstsky in paying to the contractor, without its consent, more than 75 per cent, of the contract price of the buildings, and also by reason of his failure to reserve 10 per cent, of the contract price, as required by statute. It further denied such privy of the interveners to the contracts between Rot-sky and Helm as entitled them to protection under the bond, except as such protection may have accrued through Rotsky by reason of his obligation to such interveners arising under the contracts.
O. J. Miller, A. 6. Screen Company, S. E. Starns, C. J. Browning, J. H. Meade, C. Johnson, and W. Pressly answered, setting up various claims for labor and material furnished Helm, and asserting materialmen’s and laborers’ liens by virtue of compliance with the statutes. Johnson and Pressly also .intervened for recovery from the deposit company of $1,000, which they had placed with it as an assurance that Helm, .would complete the buildings, and to be returned to them when.the buildings were completed. For a more detailed statement of the case, reference is made to* the opinion of the Court of Civil Appeals, 178 S. W. 837.
Rotsky alone applied for writ of error, the granting of which brings before the Supreme Court the consideration of the questions urged in the application.
As these errors assigned to the judgment of the Court of Civil Appeals authorize the consideration of the questions hereinafter discussed, we will pretermit a statement of them and the order of their presentation.
The questions to be considered in arriving at a disposition of this ease are: (1) Is Rot-sky liable to the lumber company for the debt of Helm: (a) By reason of a verbal equitable assignment; (b) by virtue. of the primary promise of Rotsky to answer for Helm’s debt; or (e) because a materialman’s lien had been fixed on Rotsky’s property at a time when he was called upon to reserve from the contract price the amount of the debt of the lumber company? (2) Did Rotsky pay out more than in contemplation of his contract with Helm, so as to effect a release of the bonding company? (3) Did Rotsky’s failure to retain 10 per cent, of the contract price effect a release of the bonding company under the statutes? (-1) Did any of the interveners have materialmen’s or laborers’ liens properly fixed upon the property? (5) If so, what were the rights of these lienors as among themselves and as against Rotsky? (6) Were Johnson and Pressly entitled to have the bonding company return the $1,000 placed with it as indemnity? The answers to these issues as established by the evidence seem to be determinative of the whole case.
It is dear from plaintiff’s pleading and evidence that reliance as to an equitable assignment is wholly upon an assertion of such assignment as comprehending the entire debt, accrued and to accrue, from Helm to it, for material supplied, at least to the extent of $3,000. It does not show itself entitled to a recovery upon any of the theories pleaded as the basis for its action. Whether it be entitled to recover upon the theory of an equita
The order here suggested is, in our opinion, sound, and finds support in Nichols v. Dixon, 99 Tex. 263, 89 S. W. 765. It is true that Judge Williams specifically states that this question is not before the court, and no opinion is expressed upon it, yet the general course of reasoning in the opinion accords with the view here expressed.
It certainly would be unjust to the diligent-claimant, and without purview of his equitable rights, to penalize him because of the refusal of the owner to make immediate payment of his claim. The duty of the owner is to reserve the impounded funds to satisfy existing charges.
When the diligent claimant obtains the-right, the owner then becomes the principal obligor to him to the extent of the fund impounded, subject alone to the equality given to the like diligent claimants falling in a-particular class. The statute does not penalize the owner for a delay in payment to the-diligent claimant, since it specially provides that he shall not be bound beyond his contract.
The judgments of the Court of Civil Appeals and of the district court, as between the deposit company and Johnson and Pressly, should remain undisturbed; in all other respects the judgments of these courts should be reversed, and the cause remanded to the district court for trial in accordance with this opinion.
We approve, the holding of the Commission of Appeals on the questions discussed in its opinion.
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