Opinion
No. 7579.
April 15, 1916. Rehearing Denied June 17. 1918.
Appeal from District Court, Taylor County Thomas L. Blanton, Judge.
Action by the Lanius Pressed Brick Company against George P. Bullard and others. From a judgment for plaintiff, certain defendants appeal. Reversed and rendered as to appellants only.
J. L. Gammon and G. C. Groce, both of Waxahachie, for appellants. Ben L. Cox and A. H. Kirby, both of Abilene, for appellee.
The Lanius Pressed Brick Company furnished the brick used in the construction of a house of worship for the First Baptist Church of Abilene. E. S. Boze was the contractor who erected the building, and the brick were furnished to him as such contractor. Boze executed a bond, with sureties thereon, to the trustees of the church, and to all persons who might become entitled to liens upon the building, to insure the completion of the work in accordance with the terms of the contract, and also to insure the payment by the contractor of all indebtedness that might be incurred by him in the construction of the building. The present suit was instituted by the Brick Company against the contractor, the trustees of the church, and the sureties on the bond, to recover a balance due for brick so furnished, and to establish and foreclose a furnisher's lien on the building. From a judgment granting plaintiff the relief so prayed for, certain of the sureties on the bond alone have appealed. The case is a companion to the case of Bullard v. Norton, decided by our Supreme Court, whose opinion appears in 182 S.W. 868, and the facts of the two cases are the same, except that in the case last mentioned the plaintiff's claim was that of a subcontractor, instead of that of a furnisher of material. Upon the authority of that decision the judgment rendered by the trial court in the present suit against appellants is reversed, and judgment is here rendered in favor of those appellants. In all other respects the judgment is undisturbed.