Crockett v. Sampson, 11659

• Decision Date: 12 March 1969
• Docket Number: No. 11659,11659
• Parties: Moton H. CROCKETT, Jr., Appellant, v. Sidney SAMPSON, Individually and d/b/a Overhead Door Company, Appellee. . Austin
• Court: Texas Court of Appeals

Page 355

439 S.W.2d 355

Moton H. CROCKETT, Jr., Appellant, v. Sidney SAMPSON, Individually and d/b/a Overhead Door Company, Appellee.

No. 11659.

Court of Civil Appeals of Texas Austin.

March 12, 1969.

Coleman Gay, Austin, for appellant.

Harold L. Nelson, Austin, for appellee.

HUGHES, Justice.

Joe Freidman contracted to contruct a building for Moton H. Crockett, Jr., appellant. Sidney Sampson, appellee contracted with Freidman to furnish and install doors and electric operators in this building for $596.50, a reasonable price. Installation was completed June 8, 1965. Freidman failed to pay appellee who on August 31, 1965 mailed a letter to appellant advising him of this unpaid account requesting payment and enclosing a 'Notice of Intent to File Lien.' This notice, addressed to appellant, described the property in Travis County on which the building was constructed, itemized the account, and stated that a lien would be filed in the office of the County Clerk of Travis County on or before September 30, 1965. This notice of intent was signed by appellee and duly sworn to by him before a Notary Public.

Appellee testified, 'I did in fact file my affidavit for lien in the office of the County Clerk of Travis County, Texas.'

There is in the record an instrument which we copy in full, except for description of the property, which bears the endorsement 'Mechanic's Lien Records, Travis County, Texas' which we presume to be the instrument referred to by appellee. The date of filing is not shown. It reads:

'THE STATE OF TEXAS

County of TRAVIS

Sidney Sampson, Affiant, makes oath and says that he does business as, and is owner of OVERHEAD DOOR COMPANY OF AUSTIN and says that the annexed is a true and correct account of the labor performed and the materials furnished by him to and for Joe Freidman, Route 7, Box 608 of Austin, TRAVIS County, Texas, and that the prices thereof, as set forth in said account hereto annexed, are just and reasonable, and the same is unpaid; that the labor was performed and materials furnished for said Joe Freidman at the time in said account mentioned, under contract and/or by virtue of an agreement between affiant and Joe Freidman and that due notice was given by affiant of the labor performed and material furnished in accordance with law; and affiant further makes oath and says that he is informed that Moton H. Crockett, Jr. was, at the time said contract and/or agreement was made and entered into, and said materials were furnished and labor was performed, the owner of the house, building and/or improvements described as follows: Masonry commercial building and garage and the said house, building and/or improvements is situated upon a certain lot or tract of land which affiant is informed is now owned by Moton H. Crockett, Jr. * * * and this affiant claims a lien upon said premises and all improvements upon said land.

OVERHEAD DOOR COMPANY OF AUSTIN

By: /s/ Sidney Sampson

(Owner)

THE STATE OF TEXAS

County of TRAVIS

Before me, Edith Ricketson, a Notary Public, in and for the State and County aforesaid, on this day personally appeared Sidney Sampson known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purpose and consideration therein expressed.

Given under my hand and seal of office, this 28 day of September, 1965.

(NOTARY SEAL)

/s/ Edith Ricketson

Notary Public in and for

Travis County, Texas' The record does not disclose when construction of the building was completed.

The record does not disclose whether appellant retained or had in his possession any funds accrued or to accrue under his contract with Freidman when notified of appellee's claim.

In a non-jury trial, judgment was rendered for appellee for the sum sued for, interest and attorney's fees but without establishing a lien.

Appellee seeks to sustain his judgment upon the theory of quantum meruit in that it would be unjust enrichment for appellant to retain the benefits bestowed on him by appellee without paying for them. We overrule this contention.

There is neither pleading nor evidence that Freidman was the agent of appellant, or that appellee had any dealings with appellant, or that appellant did not pay Freidman the full contract price, or that Freidman was other than an independent contractor.

Liability on quantum meruit is based on a contract implied in law. An essential prerequisite to such liability is the acceptance of benefits by the one sought to be charged, rendered under such circumstances as reasonably to notify him that the one performing such services expected to be paid therefor by him, the person sought to be charged. 98 C.J.S. Work and Labor § 8, p. 724, Wyche v. Perrin, 228 S.W.2d 330, Tex.Civ.App. Dallas, writ ref. n.r.e. (1950) .

There are no circumstances here which could have lead appellee to believe that any one other than Freidman would pay him for the work and materials expended by him. No equities in behalf of appellee against appellant are shown. There is no basis for a recovery in quantum meruit. McConnell v. Frost, 45 S.W.2d 777, Tex.Civ.App. Waco, writ ref. (1931).

We will now examine the potential liability of appellant for this claim under the provisions of Arts. 5452, 5453, 5455, 5463 and 5469, Vernon's Ann.Civ.St.

Art. 5452 provides for a lien in behalf of a subcontractor, such as appellee, upon the improvements being repaired or constructed 'upon complying with the provisions of this Chapter.'

Art. 5453 prescribes the method of securing the lien provided for in Art. 5452. In part, it requires that a subcontractor not later than 90 days after his indebtedness accrues 'shall file his affidavits claiming a lien' in the office of the County Clerk of the county where the property being repaired or improved is located. (Italics added)

Art. 5463 authorizing an owner to retain funds due a contractor upon receiving the notices therein mentioned provides that, 'Such funds shall be retained * * * Until the time for securing a lien under this Act has passed; or if a Lien affidavit has been filed, until a lien claim has been satisfied and released.' (Italics added)

We quote the following portion of this Article:

'The owner shall in no case be required to pay, nor his property be liable for, any money, other than that required to be retained by him under the provisions of Article 5469 hereof, that he may have paid to the contractor before he is authorized under this Article to retain the money. If the notices prescribed in Article 5453 have been received by the owner and claimant's lien has been secured in accordance with Article 5453 and the claim or any part thereof is reduced to final judgment, the owner shall be required to pay, and his property shall be liable for, any money that he may have paid to the contractor after he is authorized to retain such money by virtue of this Article, as well as any money he is required to retain by the provisions of Article 5469 hereof.' (Italics added)

Article 5469 provides, in part, that whenever work is done whereby a lien may be claimed under Art. 5452 the owner shall retain in his hand a certain portion of the contract for a period of 30 days after the work is completed and further provides that, 'All persons who shall send notices in the time and manner required by this Act and shall File affidavits claiming a lien not later than thirty (30) days after the work is completed shall have a lien' as therein stated. (Italics added)

Art. 5455 prescribing the form of claim to be used under these statutes states, in part, that 'An affidavit claiming a lien filed for record by any one claiming the benefit of this Act shall be signed by the claimant, * * *' and requires, 'A sworn statement of his claim * * *' (Ialics added)

It is our opinion that appellee has not complied with these statutes in that the instrument filed by him for record is not, in our judgment, an 'affidavit.'

Art. 23, Sec. 18, V.A.C.S., defines an affidavit as follows:

"Affidavit' means a statement in writing of a fact or facts signed by the party making it, and sworn to before some officer authorized to administer oaths, and officially certified to by such officer under his seal of office.' ¹

It is obvious that the instrument filed for record by appellee is not an affidavit. It has no jurat on it. Rather, it has an acknowledgment. The two are not the same. Wilde v. Buchanan, 303 S .W.2d 518, Tex.Civ.App. Austin, writ ref. n.r.e., 156 Tex. 606, 305 S.W.2d 778 (1957).

The identical question presented here regarding the validity of a claim because of its defective form has been before the courts of at least two other states. In Dalbey Bros. Lumber Company v. Crispin, 234 Iowa 151, 12 N.W.2d 277, Iowa Supreme Court (1943), the Court, with three justices dissenting, held that a sworn statement required to be filed by statute in order to perfect a mechanic's lien was not fatally defective because it had an acknowledgment form filled in by the Notary rather than a jurat in attesting to the signature of the claimant. The statement was in the form of an affidavit and it had both an acknowledgment and a jurat on it, the Notary signing only the acknowledgment. The Iowa Court in referring to another applicable Iowa case quoted to the effect that there the statute did not prescribe the form of an oath.

The contrary was held in Bell and Zajicek, Inc. v. Heyward-Robinson Company, 23 Conn.Sup. 296, 182 A.2d 339 (1962). There the Court held that a mechanic's lien acknowledged but not 'sworn to' as required by the statute was invalid, the Court saying that while the lien statutes were to be construed so as to reasonably and fairly carry out their remedial intent the plain meaning of the language of a statute could not be ignored.

Appellee cites Womack v. Allstate Ins. Co., 286 S.W.2d 308, Tex.Civ.App. Amarillo, reversed 156 Tex. 467, 296 S.W.2d 233 (1957) and Order of Aztecs v. Noble, 174 S.W. 623, Te...