Carey v. H. D. Taylor Lumber Co. ( 1922 )

FLY, C. J.

This is a suit instituted by ap-pellee against W. E. Carey and Adella Carey, his wife, to recover on a certain promissory note and to foreclose a lien for material fur; nished appellants. It was alleged that the note was jointly executed, and that it was given in part payment for material furnished by appellee to appellants for improvements made on a certain parcel of land in the town of Harlingen, being block No. 114 in said town. The court heard the cause without a jury, and rendered judgment in favor of appellee for the sum of $3,262.30, and foreclosure of the lien for $1,273.18 on the land described.

The facts disclose that appellants executed a promissory note to appellee on May 13i 1920, for $3,800.87, due 90 days after date. On the same date appellants entered into a contract with appellee in which it was recited that appellants desired to erect a residence on town block 114 in Harlingen, and appellee had agreed to furnish material for same in the sum of $3,800.87, and to secure the payment of said sum appellants gave a lien on said property and the house to be erected thereon. The contract was signed and acknowledged by the parties thereto; the privy acknowledgment of Mrs. Carey being taken as required by law. Tbe contract was executed after a portion of tbe material bad been furnished and tbe lien was foreclosed to secure tbe payment of that portion of tbe máterial wbicb was furnished after tbe contract bad been executed. Tbe material furnished before tbe contract was signed was furnished at tbe instance and request of appellants, and all of tbe material was furnished and used in tbe construction of tbe residence for appellants.

The first and second assignments of error will be overruled. They state that appellants objected to tbe use as evidence of a certain estimate and a certain account marked Exhibit B. What that estimate and account were is not disclosed by the brief, and, if they were objected to and bills of exception taken to the*, appellants do not mention it. There is only one reference to a page of tbe record, under tbe assignments of error, and this court is not called upon to search tbe record to ascertain tbe subject of assignments of error.

Tbe third assignment complains of some contract known as Exhibit 5, but it is not set out in tbe brief, and no attempt made to state its substance or in any wise to identify it. Tbe assignment is overruled.

Tbe evidence was sufficient to show material of tbe value of $1,989.12 was furnished to appellants after tbe execution of tbe contract, which was executed so as to fix a lien on a homestead under tbe law. Tbe lien was not foreclosed for any except material furnished after the execution of tbe contract. Tbe fourth and fifth assignments of error are overruled.

Tbe judgment is affirmed.