Carthage Ice & Light Co. v. Roberts , 1914 Tex. App. LEXIS 613 ( 1914 )

LEVY, J.

(after stating the facts as above).

[1] The first and second assignments of error presented by the appellant, Security Trust Company, can be here considered together as presenting the same question. The contention under the assignments is in effect that the court erred as a matter of law in enforcing a laborer’s lien on the particular property as against the title and claim to the same made by the Security Trust Company, because it appears under the pleading and proof the services, the value of which was sued for by Roberts as performed by him from July 1, 1911, to July 1, 1912, were accrued and payable under the terms of employment on July 1, 1912, and the maturity of the demand was postponed by contract between Roberts and his employer, Trabue, until July 1, 1913. The appellee Roberts’ petition, amended by a trial amendment, alleged that he. labored in the ice and light plant, at the duties required of him as a machinist, under hire and employment of R. E. Trabue, the owner of the plant, from July I,- 1911, to February 15, 1913, at the agreed pay of $900 per annum, payable at the expiration of a year, and that on February 15, 1913, the day his employment was terminated, R. E. Trabue was due and owing him $853.88, all credits and offsets being fully allowed. Appellee further alleges that as to the services performed from July 1, 1911, to July 1, 1912, for which payment was due by the terms of employment on July 1, 1912, he and R. E. Trabue agreed to extend the period of demand and payment until February,' 1913. The court makes the finding, and same is warranted by the evidence, that after proper credits and offsets were allowed R. E. Trabue, lie was owing the plaintiff Roberts, on February 16, 1913, tbe sum of §853.88 for services. If tRe petition and tRe facts found by tRe court sRould properly be construed to mean, and we think tRey reasonably did mean, that appellee Roberts was asserting a demand, as unpaid, for Ris services from July 1, 1912, until February 15, 1913, as well as tRe balance unpaid from July 1, 1911, to July 1, 1912, tRen tRere is not sRown any agreed extension of due date of tRe wRole demand. TRere would appear an agreed extension of due date only so far as tRe demand of tRe year from July 1, 1911, to July 1, 1912, remaining unpaid by Trabue, is concerned. And interpreting tRe finding of tRe court that tRere was due on February 15, 1913, the aggregate sum of §853.88, as meaning — which we think must be done — that no part of the sum due from July 1, 1912, to February 15, 1913, had been paid or entitled to credit or offset, there appears due and owing by R. E. Trabue to Roberts 7% months’ pay under the second year, aggregating §562.50, leaving only §291.-38 of the §853.88 as due in the first year. Consequently, if appellant is entitled to make the question presented by the assignments, it could only, under the pleading and facts, be made by it so far as the amount due for services from July 1, 1911, to July 1, 1912, is involved. And the assignments only attack the right to a laborer’s lien at all, and do not question the extent of the recovery as to amount for which the property is subjected to the lien.

[2] But it is not believed, as the record is made here, that appellant is in a legal position towards the property to make any contention in respect to the invalidity, if it be so, of a laborer’s lien, even to the extent of the amount agreed to be extended for one year. If the appellant, Security Trust Company, is the owner, or has any lien, claim, or interest in the property on which appellee asserts a laborer’s lien, it does not so appear by any finding of the trial court, or by pleadings, or by any evidence in the statement of facts. It does appear in a finding by the court that the Security Trust Company took possession of the property through legal process on February 15, 1913. But this is the extent of the finding. The “legal process” does not appear in the record, or as offered in evidence in support of a claim by appellant; and we cannot assume, as against the court’s judgment, that he found the legal process was valid or not dismissed at the time of the trial, or that appellant had a claim or title through it, for the court’s judgment involves a contrary finding. And while appellee alleges that appellant is asserting some character of claim or lien unknown to plaintiff, we cannot, as against appellant’s general denial of all facts alleged by plaintiff, look to that and presume some valid claim in appellant to the property. It was essentially a matter of prooí by appellant if superiority of claim or interest to appellee is to be predicated by appellant. The assignments are overruled.

R. E. Trabue does not appeal; and, the Ice & Light Company being purely a fiction without legal entity, it 'cannot be properly held that there is any other appellant before this court than the Security Trust Company.

The third assignment cannot be considered, as not being in the motion for new trial; and, if it should be considered, the same is overruled for the reason given under the previous assignments.

The judgment is affirmed.