Ed. Banks et al. v. Henry House, 93 Tex. 58

BROWN, Associate Justice. Ed Banks and his wife, Alice, owned and resided upon a lot in the city of Houston, upon which there were two notes outstanding, respectively for $105 and $110, the purchase money of the lot, and each note provided for 10 per cent interest from maturity and 10 per cent attorneys’ fees, if collected by law. Both notes belonged to House, and were due when this suit was filed. On the 6th day of January, 1897, a contract was entered into between Banks, joined by his wife, and R. C.

Dick, by which Dick agreed to place upon the homestead lot certain improvements described in the contract, for which Banks and wife agreed to pay the sum of $700, expressly agreeing that there should be a mechanic’s lien upon the property to secure that sum. The contract was acknowledged by the wife and recorded as required by law to create the lien upon the homestead.

When the contract was executed, it was agreed that it should be used to get money to pay for the improvements made upon the homestead, and that Dick should receive the reasonable value of the material fur- . nished and the labor performed in making the improvements upon the lot, the balance of the money which might be borrowed upon the contract. to be turned over to Banks. Ho money was borrowed upon it. R. C.

Dick transferred the contract to Henry House, the owner of the vendor’s lien notes, who furnished material and money to pay for labor in making the improvements, and sued to foreclose the mechanic’s lien for the sum of $700. The petition alleged the making of the two notes, that they were for the purchase money of the land, the rate of interest, and that 10 per cent was a reasonable charge for the attorneys’ fees provided for in the notes.

Defendants Ed and Alice Banks filed general demurrers and pleaded as follows: “And for further answer this defendant says that he owes the two vendor’s lien notes described in plaintiff’s petition, and he hereby acknowledges the justness of same, together with all interest thereon, as set out in said petition, and also acknowledges that the same are a good and subsisting lien upon the property described in said petition, and further acknowledges in judgment same with.all costs herein up to and including the day that this defendant filed his original petition herein as a lien upon said property.

But this defendant denies all and singular the allegations in said petition in regard to the contract set forth therein, and says that said instrument was never a valid contract between the parties thereto,” etc. The defendants denied liability upon the contract sued on to the amount expressed in the face of it, and alleged that Dick was only to receive the reasonable value of the work done and performed by him. The answer set up various defenses that are not involved in the questions presented here and therefore not necessary to be mentioned.

The case was tried before a jury, and the court charged the jury as follows: “There being no controversy between the parties as to the vendor’s lien notes sued on, you will find for the plaintiff for the full amount, principal, interest, and attorneys’ fees, of the said vendor’s lien notes against both defendants and for foreclosure of the said vendor’s lien notes against both defendants on the land described in the plaintiff’s petition.” The jury returned the following verdict: “We, the jury, find for the plaintiff on the mechanic’s lien and materials furnished in the the sum of three hundred and fifty dollars, and for amount of the vendor’s lien notes, with interest and attorneys’ fees, as provided for on. the face of said notes, and for foreclosure of the vendor’s and mechanic’s lien.” The evidence justified the verdict and judgment was entered in accordance therewith, which was affirmed by the Court of Civil Appeals.

The answers of the defendants contained a general denial which was restricted to the allegations of the petition based upon the building contract, and there was no denial of any allegation concerning the notes. The admissions of liability upon the notes and the express confession of judgment upon them must be held to mean such judgment as the court could pronounce which would embrace the attorney’s fees provided for in the notes and set up in the petition, because a judgment that did not include the attorney’s fees would not dispose of the whole matter.

Ho issue as to the vendor’s lien notes or any right growing out of them was raised by the pleadings, and the court might have entered judgment without submitting to the jury any question connected with them. There was no error to the plaintiff’s injury in submitting the question of attorney’s fees to the jury nor in entering judgment therefor. It is unnecessary for us to discuss the other questions presented in the application; they were properly disposed of by the Court of Civil Appeals. We find no error, and it is ordered that the judgments of the District Court and Court of Civil Appeals be affirmed. Affirmed.