Smith v. Huckaby

Court of Appeals of Texas

Smith v. Huckaby

23 S.W. 397, 4 Tex. Civ. App. 80, 1893 Tex. App. LEXIS 364

CourtCourt of Appeals of Texas

DecidedSeptember 20, 1893

DocketNo. 229.

StatusPublished

Cited by5 cases

This text of 23 S.W. 397 (Smith v. Huckaby) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Huckaby, 23 S.W. 397, 4 Tex. Civ. App. 80, 1893 Tex. App. LEXIS 364 (Tex. Ct. App. 1893).

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Opinion

HEAD, Associate Justice.

We adopt the conclusions of fact filed by the court below as being correct.

The only assignment of error relied on in appellants’ brief is as follows: “ The court erred in its conclusions of law, in refusing to foreclose appellants’ mechanic’s lien.” That such an assignment is too general to admit of consideration, has been repeatedly decided by the Supreme Court (Legion of Honor v. Rowell, 78 Texas, 677), and followed by us. Gunter v. Lillard & Co., 1 Texas Civ. App., 325.

We believe, however, the court below did not erf in concluding that appellants showed no right to foreclose the mechanic’s lien claimed by them against the defendant Bailey. This lien was claimed under a contract made by appellants with defendant Huckaby to repair some houses already on the lot. Huckaby’s only claim to the lot was under a verbal contract with Bailey to pay him S600 in monthly installments, none of which had been paid, for which failure the trade was cancelled. Appellants do not seek to comply with Huckaby’s contract by paying Bailey for the lot and have their lien foreclosed against Huckaby’s interest, but they ask that they be given priority over Bailey. This they were not entitled to have. Exhibition Assn. v. Perkins, 80 Texas. 62; Phil, on Mech. Liens, 72.

We find in the record no sufficient evidence of estoppel against Bailey to deny appellants’ lien. It is only shown that he knew appellants were making the repairs for Huckaby, but not that he knew they were in ignorance of the nature of his title. That this was not sufficient as an estop *81 pel, we think clear from the authorities above cited. The petition did not seek a personal judgment against Bailey upon his promise to Mrs. Huckaby to pay appellants. Spann v. Cochran & Ewing, 63 Texas, 240.

Delivered September 20, 1893.

The judgment of the court below must in all things be affirmed.

Affirmed.

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HEAD, Associate Justice.

We adopt the conclusions of fact filed by the court below as being correct.

The only assignment of error relied on in appellants’ brief is as follows: “ The court erred in its conclusions of law, in refusing to foreclose appellants’ mechanic’s lien.” That such an assignment is too general to admit of consideration, has been repeatedly decided by the Supreme Court (Legion of Honor v. Rowell, 78 Texas, 677), and followed by us. Gunter v. Lillard & Co., 1 Texas Civ. App., 325.

We believe, however, the court below did not erf in concluding that appellants showed no right to foreclose the mechanic’s lien claimed by them against the defendant Bailey. This lien was claimed under a contract made by appellants with defendant Huckaby to repair some houses already on the lot. Huckaby’s only claim to the lot was under a verbal contract with Bailey to pay him S600 in monthly installments, none of which had been paid, for which failure the trade was cancelled. Appellants do not seek to comply with Huckaby’s contract by paying Bailey for the lot and have their lien foreclosed against Huckaby’s interest, but they ask that they be given priority over Bailey. This they were not entitled to have. Exhibition Assn. v. Perkins, 80 Texas. 62; Phil, on Mech. Liens, 72.

We find in the record no sufficient evidence of estoppel against Bailey to deny appellants’ lien. It is only shown that he knew appellants were making the repairs for Huckaby, but not that he knew they were in ignorance of the nature of his title. That this was not sufficient as an estop *81 pel, we think clear from the authorities above cited. The petition did not seek a personal judgment against Bailey upon his promise to Mrs. Huckaby to pay appellants. Spann v. Cochran & Ewing, 63 Texas, 240.

Delivered September 20, 1893.

The judgment of the court below must in all things be affirmed.

Affirmed.

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23 S.W. 397, 4 Tex. Civ. App. 80, 1893 Tex. App. LEXIS 364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-huckaby-texapp-1893.

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