Zimmerman Land & Irrigation Co. v. Rooney Mercantile Co. , 1917 Tex. App. LEXIS 493 ( 1917 )

It is apparent that the only issue here involved is whether or not the court properly subjected said sum of $3,801.38 to the payment of the judgments held by the Rooney Mercantile Company and interveners against the Baker Manufacturing Company. It is first contended that the fund in controversy was not owing by the garnishee. This is upon the theory that the fund was forfeited and lost by the Baker Manufacturing Company by reason of its failure to complete its construction contract. The fourteenth paragraph of this contract is quoted above, and is the only portion thereof which has any bearing upon this question. There is no forfeiture clause in the contract The construction contract was completed by Lambert and accepted by garnishee. The trial court found that the relinquishment by the Baker Manufacturing Company to Lambert of its interest in the contract was for the purpose of completing same. It thus follows that when Lambert completed the contract for the Baker Manufacturing Company and the work was accepted by the garnishee, the garnishee then became liable to pay the 15 per cent reserve fund which had accumulated and which had been earned at the time of the assignment by the Baker Manufacturing Company to Lambert.

The next assignment is that the court erred in rendering judgment in favor of the Rooney Mercantile Company because it appears that prior to the issuance and service of the writ of garnishment, the Baker Manufacturing Company had transferred and assigned the fund in controversy to Lambert. Upon this phase of the case, the majority of the court are of the opinion that the assignment to Lambert must be interpreted in connection with the contract he made with the garnishee to complete the dam, and in so construing them it seems clear that the amount 15 per cent. reserve fund was assigned, subject to the payment of all debts then owing by Baker Manufacturing Company and subject to payment of all debts contracted by Lambert in the completion of the dam. The assignment to Lambert is quoted above. The contract between Lambert and garnishee as here applicable reads:

"This contract between Zimmerman Land Irrigation Company * * * and C. W. Lambert * * * witnesseth: That the first party having heretofore entered into a contract with Baker Manufacturing Company * * * for the construction of a dam, * * * and said company having failed to carry out its part of this contract, * * * and same having been canceled by the party of the first part and said cancellation acquiesced in by said company, * * * and said Lambert having been at work in said dam for said Baker Manufacturing Company and being familiar with the terms of the contract * * * and being desirous of taking it over according to its terms and specifications, * * * etc., wherefore the party of the first part herein binds itself to pay said Lambert (as specified) as it is finished. * * * It is expressly understood and agreed that because of the fact that the Baker Manufacturing Company had contracted debts * * * in the construction work * * * and the said Lambert hereby agreeing as a part of the consideration for his work, in payment of same, that the overplus, if any, after making or paying advancements provided for in this contract, shall be retained by the first party and applied and paid to the different parties to whom Baker Manufacturing Company became indebted * * * according to their priority and under pro rata basis, but if all debts are paid in full, then the surplus, if any, shall go to said Lambert or his order. The said Lambert having knowledge of all these facts, is desirous of paying said indebtedness of the said Baker Manufacturing Company."

That on the 13th day of August, 1915, the Baker Manufacturing Company executed an instrument in effect as follows:

"The Baker Manufacturing Company * * * being desirous of disposing of any interest that we had or may have in a certain reservoir site * * * for the construction of which we have a contract with the Zimmerman Land Irrigation Company * * * and being desirous of terminating any interest or control * * * with reference to the construction of said dam, do by these presents transfer and assign to C. W. Lambert * * * all our right, title and interest in and to said contract, and authorize the said Lambert to make whatever contract that he or it may see fit to enter into for the further prosecution and completion of said dam, * * * and hereby relinquish any right, title or interest that we may have or can have in and to said contract," etc.

(A verbatim copy of this instrument is quoted above.)

It will be noted that Lambert by signing the above has declared that he is only to have the balance, if any, after all debts are paid. And garnishee does not defend upon the proposition that after the cost of construction (all debts) were paid, there were no funds left in its hands, but claims the entire 15 per cent. reserve fund as a forfeit because Baker Manufacturing Company did not complete its contract. In the reasoning of the majority, the writer does not concur. In the conclusion that the assignment should be overruled he does concur. It will serve no useful purpose to state the grounds of his concurrence.

Error is assigned to the judgment rendered in favor of interveners, Bennett Son; five propositions being urged in support of the assignment, as follows:

(1) "The order of the 17th day of May, 1916, given by Baker Manufacturing Company to Bennett Son without an acceptance by garnishee did not render garnishee liable."

(2) "If the order given by Baker Manufacturing Company in favor of Bennett Son was accepted by garnishee that would not authorize Bennett Son to intervene in a garnishment suit, but their remedy would be a suit against garnishee upon the acceptance."

(3) "Bennett Son, interveners, alleged an unconditional acceptance of the order given by Baker Manufacturing Company, and their own proof showed only a conditional oral acceptance which constituted a fatal variance."

(4) "This being a garnishment proceeding brought by another creditor, interveners not having shown any lien and not having sued out a writ of garnishment, the court was without jurisdiction to render judgment in their favor."

(5) "Interveners having alleged in their petition that their claim against garnishee was reduced to judgment, and that the suit in which judgment was rendered was an appeal in the Supreme Court, this court is without jurisdiction to adjudicate interveners' intervention."

The instrument dated May 17, 1915, given by the Baker Manufacturing Company to Bennett Son, constituted an assignment of the 15 per cent. reserve fund to the extent of $1,672.60. Interveners' judgment described in its pleading was for an amount in excess of the amount so transferred to interveners. Suit could have been maintained upon the assignment, and it is immaterial whether or not there had been an acceptance thereof by the garnishee. It being an assignment of an interest in the garnished fund, Bennett Son had the right to intervene to protect their interest. Buchanan v. Lumber Co., 134 S.W. 292; Insurance Co. v. Patterson, 35 Tex. Civ. App. 447, 80 S.W. 1058. It is likewise immaterial whether the proof showed a conditional or an unconditional acceptance. Recovery was properly allowed if there had been no acceptance at all. It follows that the first four propositions are without merit.

As to the fifth, this, too, has no merit. It is true that there is another allegation in the plea of intervention which has not been quoted, that interveners had a judgment against the Baker Manufacturing Company for $860 rendered October 16, 1915, which was then pending upon appeal in the Supreme Court, but the plea of intervention sets up another judgment from which no appeal is pending in sum considerably greater than the amount transferred to the interveners by the Baker Manufacturing Company, and it is therefore immaterial that the other judgment described in the intervention is pending on appeal. The court was warranted in subjecting to the payment of the unappealed judgment the amount of money so transferred to Bennett Son. In connection with this assignment, we desire to point out that the assignment pleaded by the interveners shows the transfer to them of $1,672.60 only. E. W. Bennett Son, the interveners, are a partnership composed of E. W. Bennett and John Bennett. The assignment mentioned also assigns the sum of $346.30 to the Bennett Hotel, a partnership composed of E. W. Bennett and W. S. Dunbar. The court has allowed to the interveners, E. W. Bennett Son, both of the sums of money assigned by the instrument pleaded by interveners. There is no pleading that E. W, Bennett Son have acquired the $346.30 which was transferred to the Bennett Hotel. To this extent, therefore, the judgment in favor of the interveners is unsupported by the pleadings. In the absence of a statement of facts, it will be assumed that interveners had acquired from the Bennett Hotel an assignment of said sum of $346.30, and that the proof was sufficient to warrant the court in adjudging to the interveners the aggregate amount of the sums so transferred by the Baker Manufacturing Company to Bennett Son and the Bennett Hotel. But, however the proof might be, the court would not be warranted in entering judgment for the aggregate amount in the absence of pleading showing that the interveners had acquired from the Bennett Hotel the right to said sum of $346.30. The court, therefore, erred in entering judgment in favor of interveners for said sum of $346,30. This error is not called to our attention by appellant, but a judgment unsupported by the pleadings is an error in law apparent upon the face of the record, and it is the duty of this court to correct the same, though not assigned or called to our attention in any way.

Error is also assigned to the court's refusal to allow garnishee an attorney's fee. Upon the facts disclosed by the record, appellant seems to have assumed the attitude of a litigant. It contends that the moneys accruing under the 15 per cent. reserve fund clause of the construction contract were forfeited, and that it is not indebted to the Baker Manufacturing Company. Under these circumstances, the court correctly refused the allowance of an attorney's fee. Moursund v. Priess, 84 Tex. 554, 19 S.W. 775; Presnall v. Bank, 151 S.W. 873. The conclusions above indicated dispose of all assignments.

The judgment in favor of the Rooney Mercantile Company is affirmed. The judgment in favor of interveners is affirmed, with costs, upon condition that within 15 days from date a remittitur of $346.30, with interest thereon at rate of 6 per cent. per annum from October 1, 1916, be filed. If such remittitur be not so filed, then the judgment in favor of interveners shall be reversed and remanded. It is so ordered.