American Type Founders' Co. v. Nichols

• Decision Date: 25 June 1919
• Docket Number: (No. 2526.)
• Citation: 214 S.W. 301
• Parties: AMERICAN TYPE FOUNDERS' CO. v. NICHOLS et al.
• Court: Texas Supreme Court

Page 301

214 S.W. 301

AMERICAN TYPE FOUNDERS' CO. v. NICHOLS et al.

(No. 2526.)

Supreme Court of Texas.

June 25, 1919.

Certified Question from Court of Civil Appeals of Second Supreme Judicial District.

Action by J. M. Nichols against the American Type Founders' Company and another before a justice of the peace. On appeal to the county court by the named defendant judgment was entered on trial de novo for plaintiff, and the named defendant appeals to the Court of Civil Appeals. On certified question. Question answered.

George Sergeant and Cecil L. Simpson, both of Dallas, and R. E. Carswell, of Decatur, for appellant.

McMurray & Gettys, of Decatur, for appellees.

GREENWOOD, J.

Question certified from the Court of Civil Appeals of the Second Supreme Judicial District of Texas, in an appeal from the county court of Wise county. The certificate of the honorable Court of Civil Appeals is as follows:

"To the Honorable Supreme Court of Texas:

"The above-styled suit was instituted in the justice's court of Wise county by J. M. Nichols against R. B. Walker and the American Type Founders' Company to recover the sum of $111.15, with a foreclosure of lien claimed by plaintiff on one Chandler & Price job printing press and one Fairbanks & Morse gasoline engine of the alleged value of $190. The indebtedness claimed was for labor performed by the plaintiff for the defendant R. B. Walker as a printer and compositor, and the printing press and engine were used by the plaintiff in the performance of such services. A judgment was rendered in the justice court in favor of the plaintiff for $106.50, with a foreclosure of lien claimed by him, from which judgment an appeal was prosecuted by the Type Founders' Company to the county court of Wise county, where the suit was again tried, and from a judgment there rendered in favor of the plaintiff for the same relief awarded in the justice court an appeal has been duly perfected and prosecuted to this court by the American Type Founders' Company.

"The following facts were proven beyond controversy upon the trial: The plaintiff, Nichols, performed services as printer and compositor for defendant R. B. Walker, who was engaged in operating a printing establishment doing job printing work and printing a newspaper in the town of Bridgeport, and who had bought the printing press and engine from the defendant American Type Founders' Company. The services so performed by plaintiff, Nichols, were reasonably worth the amount for which he recovered judgment. He took the necessary steps required by article 5645, Revised Statutes 1911, to fix the lien upon the printing press and engine provided for in article 5644 of said statute. Prior to the employment of Nichols by Walker the latter purchased the printing press and engine from the American Type Founders' Company. As a part of the consideration for said sale Walker executed his several promissory notes aggregating the sum of $1,180,96, and secured the same by a chattel mortgage upon the press and engine, which mortgage was forthwith duly filed for registration in the county clerk's office of Wise county. This mortgage was filed prior to the time Nichols began to work for Walker, and the purchase-money notes given by Walker have never been paid. The trial court held that the statutory lien fixed by the plaintiff upon the press and engine was superior to the appellant's mortgage lien, and to this finding the appellant has assigned error. We have been cited to no decision by your honorable court and have been unable to find any decisive of the question presented by this assignment, and in view of the importance of that question, and of the further fact that the amount in controversy in this suit is not sufficient to give your honorable court jurisdiction by writ of error, we have deemed it advisable to submit for your honor's determination whether or not the decision of the trial court upon the question above noted was correct."

We answer that the decision of the trial court was not correct. The decision of the trial court can only be sustained by construing the act approved May 27, 1897 (10 Gammel's Laws of Texas, p. 1272), as giving priority to the employés' liens specified in the act over liens previously created, save in the single instance of the lien of the farm hand, in so far as it is subordinated to the lien of the landlord. The act does not purport to give priority to the employes' liens, but merely provides for a first lien upon property created by the labor of the employés or necessarily connected with the performance thereof.

In 16 Ruling Case Law, at page 507, it is stated:

"To protect the wages of employés, a variety of constitutional provisions and statutes have been adopted. * * * The liens given by such statutes are subordinate to prior liens, such as chattel mortgages, unless a different rule of priority is expressly prescribed."

We might rest our answer on the proposition that there is no express legislative declaration of priority for the employés' liens, in the absence of which there can be no displacement of existing and registered liens. Hedeman v. Newnom, 109 Tex. ___, 211 S. W. 968.

There is nothing in the statute which could be held to confer express priority on the employés save that the lien given to each of them is described as "a first lien." These words lose what might otherwise be their significance as implying priority over other liens, when we consider the words of similar Texas statutes where no priority was given and the words of similar Texas statutes where priority was given.

Articles 5475 and 5490 of the Revised Statutes each give "a preference lien" on certain property to landlords. Yet nothing is better settled in Texas than that this preferred lien is subordinate to pre-existing mortgages. Brackenridge v. Millan, 81 Tex. 17, 16 S. W. 555; Association v. Cochran, 60 Tex. 625; Oakes v. Freeman (Civ. App.) 204 S. W. 360; Burgher v. Barry (Civ. App.) 211 S. W. 457.

Article 5664 of the Revised Statutes gives "a special lien" on certain animals and vehicles for charges against same in favor of proprietors, owners, and lessees of livery stables and pastures. Such special liens, attach, however, subject to subsisting mortgages. Masterson v. Pelz (Civ. App.) 86 S. W. 56.

A comparison of the act of May 27, 1897 with the act of February 18, 1879, amended March 10, 1887, providing liens for railroad employés (8 Gammel's Laws of Texas, p. 1308, and 9 Gammel's Laws of Texas, p. 815), leaves little room for doubt that there was no intention by the Legislature to make the employes' liens conferred by the act of 1897 "prior to all others"; for the acts of February 18, 1879, and March 10, 1887, dealt with a part of the same general subject-matter as the act of May 27, 1897, that is, giving security for the payment of wages to employés, and the first two acts declare the liens therein specified "prior to all others," while the later act omits the words "prior to all others," as it omits any words of like plain and direct import with respect to lien priorities. It is because the act of February 18, 1879, as amended March 10, 1887, does contain the words "prior to all others," that railroad employés' liens have been adjudged superior to prior liens. Hubbell v. Texas Southern Ry. Co. (Civ. App.) 126 S. W. 317. Just as the Legislature used plain and positive language when it was intended to make prior liens subordinate to statutory liens, before the passage of the act under consideration, so it has since used equally plain and positive language to accomplish that purpose.

The Thirty-Third Legislature enacted the last amendment to the act under consideration, continuing to omit any words declaring the liens thereby protected superior to others. Acts Regular Session 33d Leg. c. 80, p. 151 (Vernon's Sayles' Ann. Civ. St. 1914, arts. 5644, 5644a). At the same session the Legislature by statute, gave persons furnishing water for purposes of irrigation a preference lien on crops raised on irrigated lands, but, intending other liens to be subordinated, expressly declared that the statutory lien should be "superior to every other lien." Act approved April 9, 1913, Regular Session 33d Leg. p. 377, c. 171, § 87 (Vernon's Sayles' Ann. Civ. St. 1914, art. 5009); Bank & Trust Co. v. Smith, 108 Tex. 272, 192 S. W. 533. It cannot be rightly concluded that the Legislature in the one instance had in mind the necessity of plain and positive language to override subsisting rights, and in the other instance overlooked such necessity.

It is contended that the proviso in the statute that the lien given a farm hand shall be subordinate to the landlord's lien evidences the intent of the Legislature that all other liens shall be subordinate to the liens given farm hands and the other beneficiaries of the statute.

In our opinion, the proviso supports our construction of the statute. For, under the case of Brackenridge v. Millan, 81 Tex. 17, 16 S. W. 555, it cannot be doubted that, if a farm hand of a tenant were to use in the performance of the labor of his employment an implement in the possession of the tenant, furnished by the landlord, and previously mortgaged by the landlord, and if we declared the farm hand's lien superior to all others save the landlord's, then the priorities of liens on the farm implement, as between the farm hand, landlord, and mortgagee, would be as follows: (1) The farm hand's lien would be superior to the mortgagee's; (2) the mortgagee's lien would be superior to the landlord's; (3) the landlord's lien would be superior to the farm hand's.

Under such a condition no foreclosure would be possible on the farm implement in a controversy between all three of the named lienholders; for the proceeds of sale of the implement could not be ordered paid first to the mortgagee, because the farm hand's lien would be superior to the mortgagee's. Nor could such proceeds be ordered paid first to the landlord,...