Citations
- 227 S.W.2d 231
Full opinion text
' NORVELL, Justice.
In the judgment appealed from, plaintiffs, Valley Ready-Mix -Concrete -Company of McAllen, Zarsky Lumber Company of McAllen and H. M. Trusse-1, were awarded Recoveries ■-for ■ the sums of $1,374.65, $1-,694.33 -and $1,101.04, respectively, plus attorney’s -fees, against defendant -Charles W. Martin. . No appeal was taken -from this .portion -of the judgment. Plaintiffs, however, were denied a recovery against defendants Val-ley State'Bank and William H. McDonald, and were denied a foreclosure of their asserted constitutional mate-rialman's liens a-gáinsf Lot '5 and the South one-half of Lot 4, Block 2, Orange Grove Addition, out of Lot 189 of the Kelly-Pharr Subdivision -of Porciones 69 and 70, Hidal-go ¡County, Texas. (The -building upon this tract of land is referred to as '“J-ob No. 5” in the briefs.) H. W. Trassel was denied -a recovery of -his -asserted -constitutional material-man’s lien -against Lot 6, and the North 20 feet -of. Lot 7, Block 2, Oran-ge Grove Addition out of Lot 189 of said Kelly-Pharr Subdivision. (The building on this tract is referred to as “Job No. 2” in the briefs.)
The -parties will be designated as in the trial court. Plaintiffs-, as appellants, submit seventeen points of error, which are -answered -by one -counterpoint, which asserts that, “The -Court -did not err in -rendering judgment for t-he defendant because the defendant Valley State Bank was an innocent purchaser ¡for value without notice of plaintiffs’ -purported constitutional lien, -if -any.” The defendant bank -also briefly replies to plaintiffs’ Twelfth Point, which we set out hereafter.
Rule 419, T.R.C.P., provides that, “any ■statement' made by appellant in his original brief as to the facts -or the record -may be accepted by the -court as correct unless challenged by opposing party.” We -apply this rule here. From the unchallenged statements contained in plaintiffs’ brief, it appears that ea-ch defendant had a v-alid -constitutional material-man’s lien against the premises -above described. Article 16, § 37, -Constitution of Texas, Vernon’s Ann.St. Farmers and Mechanics Nat’l. Bank of Ft. Worth v. Taylor, 91 Tex. 78, 40 S.W. 876, 966. The defendant -bank bases its case here upon the counter point which sets up its claim -as an innocent purchaser -for value.
Plaintiffs’ twelfth ¡point asserts that “this -case sho-uM be rev'ersed because the trial court erroneously allowed appellee Bank to offer evidence that it was an innocent purchaser as a-gainst -appellants’ unrecorded lien cl-aims, over -appellants’ -objection that ‘innocent purchaser’ had not been pleaded.”
In their first amended original petit-ion plaintiffs set up the itemized accounts o-f the three -claimants and -alleged that they had -furnished certain materials -and services to Charles W. Martin, which were used -on “Job -N-o. 5,” an-d that H. M. Trussel, in -addition to the materials and services furnished -for “Job No. 5,'” had also ¡furnished materials for the Martin “Job No. 2.”
The allegation as to the defendant bank was th-at plaintiffs “have been -informed that the sai-d Valley Staté Bank claims some interest in said properties, which interest is in all things inferior to the rights of the plaintiffs.”
The petition contained a second count, wherein it was alleged that Martin had entered into certain materialman’s lien contracts with William H. McDonald, covering the tracts of land involved (Jobs Nos. 2 and 5) and asserted that .plaintiffs were third party ‘beneficiaries under said contracts 'and prayed 'for a recovery upon this theory.
The answer to the merits filed by the bank was as follows:
“Further answering herein, comes this Defendant and says that it has no knowledge whatever as to the justness of the acts mentioned in Plaintiff’s petition but upon information and belief, this ‘ Defendant alleges that the accounts each and all are incorrect and do not correctly reflect the merchandise furnished nor the amounts due and party (sic.) denies that the same were .‘furnished for the particular house which they allege to have been -furnished, shows and particularly that same were furnished upon the date mentioned, and particularly denies that same constitutes a lien upon any property described in Plaintiff’s petition.”
In developing their case, the plaintiffs introduced m evidence the McDonald mate-rialman’s lien contracts affecting Jobs Nos. 2 and 5, together with assignments thereof to Valley State Bank. •
Shortly after plaintiffs, rested, the de-. fendants sought to introduce in evidence two deeds dated May 21, 1948, executed by Martin and conveying Lot 5 and the south half o-f Lot 4, Block 2 of the Orange Grove Addition (Job No. S) and Lot 6 and the North 20 feet of Lot 7, Block 2, Orange Grove Addition (Job No. 2), to Valley State Bank.
We quote from the statement of ‘facts:
“Mr. Oxford (Attorney for defendants) ■: We would'like to introduce ■ the ■ deeds in evidence as Defendants’ Exhibits 1 and 2.
“Mr. Johnson (Attorney for plaintiffs) : We would like to object to the admission of the deeds on the grounds that that Is'a hearsay transaction between the defendants 'in the case. There is an absence of pleadings affirmative or otherwise to support the admission and should not be admitted for any purpose, particularly to show innocent purchaser.
“The Court: What do the pleadings reflect with respect to that? ■
“Mr. Oxford: I have got one. I thought I filed it with the Court. I find, however, a motion to dismiss the motion and quash. In ray trial -amendmént I asked for affirmative relief and also asked for cancellation o