31 S.W.2d 679 | Tex. App. | 1930
The bonding company answered by plea in abatement and a denial of liability on its bond because certain provisions of the statute had not been complied with, and in a cross-bill sought to recover the retainage in the possession of the district. The Malakoff Fuel Company, Texas Clay Products Company, Central Texas Iron Works, Strawn Lumber Company, George Griddle, Jet Crawford, and R. I. Wier all intervened and sought recovery against the contractor and bonding company upon the ground they had furnished labor and material for the construction of said building.
One special issue was submitted and answered by the jury, to the effect that the evidence does not show that the supervisor, W. D. Puterbaugh, approved and the trustees paid to the contractor, C. F. McBride, more than 80 per cent. of the amount of labor and material which were used by him in the construction of the school building in question. The judgment entered by the court awarded judgment to the plumbing company against McBride and the casualty company for $5,563.25, and declared same a first and prior lien to claims of all other parties, and in favor of the plaintiffs and interveners, other than the plumbing company, pro rata for the remainder of the funds tendered into court by the school district through the First National Bank of Malakoff. The casualty company alone has appealed and assigned error.
Under its first assignment of error appellant contends the court erred in overruling its plea in abatement. The proposition asserted under this assignment is that the remedy invoked by the original plaintiffs, I. L. *681
and O. T. Woodward, being a statutory remedy, it was jurisdictional that the statutory requirements be complied with, and that no suit could be instituted by the interveners unless the municipality, within the six months allowed by law, had failed or refused to file suit on the bond. We think the record clearly shows that the plea in abatement was filed during the August term, 1928, but was not determined until the February term, 1929. No explanation appears in the record as to why the court failed to act on the plea during the term at which it was filed. This being true, it was waived as a matter of law; and if the court erred in overruling it on the other grounds, such was harmless error. Article 2013, Revised Civil Statutes; District Court Rule No. 24 (142 S.W. xix); Texas Packing Co. v. St. Louis S.W. Ry. Co. (Tex.Com.App.)
Further, we think, article
In this case the contract was abandoned by McBride, the contractor, on December 27, 1927. The suit was filed January 25, 1928. See articles 5161, 5162, and 5164 of our Revised Statutes. As a matter of fact, the school district, in effect, filed suit on July 10, 1928, when it filed its first amended original answer and asked for citation by publication so as to bring all creditors into the suit, as provided by article 5164. This citation by publication was afterwards completed. Appellant's contentions discussed above are overruled.
Under its second and fourth assignments and propositions thereunder, appellant contends, in substance: the intervening creditors being laborers and materialmen, entitled to the benefits of the bond only by virtue of statutory provisions, it was a condition precedent that they plead and prove compliance with statutory requirements as to filing sworn itemized notice of unpaid claims with the contractor or the county clerk within thirty days after the delivery of the material or the accrual of the claims, as provided by article 5160 (Rev.St. 1925), as amended. The exact question here involved arose as follows: The contract and bond upon which those who furnished the labor and material seek to hold appellant liable was executed August 5, 1927, in compliance with the provisions of article 5160 as it then was. The 40th Legislature, 1st called Sess., C. 39 (Vernon's Ann.Civ.St. Art.
Article 5160, passed by the Legislature in 1913 (Acts 1913, P. 185), conferred a right not before enjoyed by persons furnishing labor and material for the construction of a public building. It secured payment of their claims by requiring a bond to be furnished by the contractor, which bond inured to their benefit. The right of security thus conferred vested at once upon the execution of the contract and bond. It was not conditioned upon the materialmen or laborers filing an itemized sworn statement within a certain time, but such right became an unqualified vested right in the persons furnishing labor or material, and of the same date as the date of said contract and bond. The effect of the amendment of 1927 was to make the right conditional. Instead of a right vesting at once, it became a right only when and if certain additional things were done by those seeking its benefits. To give effect to the amendment, in this case, the valuable right of present security created by the contract of the parties under the law as it was prior to the amendment would be postponed to the time when itemized sworn statements were filed, and such rights would be absolutely denied to all persons failing to file such statements. When did the obligation under the bond, contract, and applicable statute in this case arise? The bond *682
was executed for the purpose of obligating the appellant to secure the laborers and materialmen for labor and material to be thereafter furnished. This security — this promise to pay — had been contracted for prior to the amendment. The laborers and materialmen then had the right to thereafter furnish the labor and material and rely upon the bond. They were required to do no more. If the amendment deprives them of this right and relieves the appellant of its obligation to perform its promise by requiring the laborers and materialmen to do something which under the contract they were not required to do, it impairs the contract, it affects the obligation, whether or not it be termed a remedy. Trinity Cement Company v. Lion Bonding Co. (Tex.Com.App.)
However, if we should be in error in the above holding, as the record shows that the intervener Dallas Plumbing Company did comply with the provisions of article 5160, as amended (Vernon's Ann.Civ.St. art.
Under its nineteenth assignment and propositions, appellant contends, in effect, that the finding of the jury to special issue submitted was not supported by the evidence. This issue was: "Does the evidence show that the supervisor, W. D. Puterbaugh, approved and the trustees paid to the contractor, C. W. McBride, more than eighty per cent. of the amount of labor and material which were used by him in the construction of the school building in question?" To which the jury answered: "No." We have carefully read and considered all the evidence bearing upon this special issue submitted to the jury, and we think the evidence is sufficient to sustain its finding. So appellant showed no right to recover on its cross-bill against the Malakoff independent school district.
We have considered all of appellant's assignments, and, finding no reversible error, overrule same. The judgment of the trial court is affirmed.