Anderson v. Clayton, 18098
| Decision Date | 10 May 1973 |
| Docket Number | No. 18098,18098 |
| Citation | 494 S.W.2d 650 |
| Parties | John H. ANDERSON, d/b/a John H. Anderson Masonry, Appellant, v. David F. CLAYTON et al., Appellees. |
| Court | Texas Court of Appeals |
Blair D. Dishman, Jr., Stanford & Dunaway, Dallas, for appellant.
Royal H. Brin, Jr., Frank L. Skillern, Jr., Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellees.
The question here is whether the plaintiff subcontractor gave timely notice of his claim to establish liability of the surety on a payment bond given by the general contractor on private work pursuant to Article 5472d.* Anderson sued the general contractor, David F. Clayton, and the surety, National Surety Corporation, Fireman's Fund American Insurance Companies, but later nonsuited Clayton, who had been adjudicated a bankrupt, and proceeded against the surety.
All of the facts were stipulated. It was agreed, Inter alia, that December 1968 was the last month in which labor was performed or material delivered by Anderson; that the first notice given to the surety of his unpaid claim was given in June 1969; and that Anderson filed a lien affidavit with the County Clerk in June 1969. The trial court found that he had failed to comply with the notice requirements of the appropriate statutes and rendered judgment that he take nothing. We affirm.
As pointed out in Trinity Universal Ins. Co. v. Palmer, 412 S.W.2d 691, 694 (Tex.Civ.App., San Antonio 1967, writ ref'd n.r.e.), there are only two methods of perfecting a claim against such a bond; i.e., as provided in Paragraph 4 of Article 5472d, either by complying with the provisions of Article 5453 for fixing a lien on the property or by 'giving to the original contractor all applicable notices of claims required by Article 5453; and, In addition thereto, by giving to the corporate surety, in lieu of to the owner, all notices therein required to be given to the owner; * * *.' (Italics ours.) There is no other way to establish liability of the surety, and subparagraph 4--b of Article 5472d provides that the said time and manner of giving such notices 'shall be conditions of a valid claim' under the article.
For Anderson's claim against the surety to be valid under Article 5453 he must have done at least the following:
1. File a lien affidavit with the County Clerk not later than 90 days after the accrual of the indebtedness (as defined in Article 5467, which in this case was the 10th day of the month next following the last month in which labor was performed or material furnished, or January 10, 1969), and
2. Give written notice of the unpaid balance of the claim to the owner not later than 90 days after the said date of January 10, 1969, or by April 10, 1969.
He did neither of them, and Paragraph 2 of Article 5453 provides that compliance with the notice requirements...
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...article 5472d makes the time and manner of such notice conditions of a valid claim against the original contractor's bond. See Anderson v. Clayton, 494 S.W.2d 650 (Tex.Civ.App.--Dallas 1973, no writ). Such a notice advises him that a claim is being made against him and his surety and gives ......
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