Horan v. Frank

• Decision Date: 01 January 1879
• Citation: 51 Tex. 401
• Parties: MICHAEL HORAN v. A. B. FRANK ET AL.
• Court: Texas Supreme Court

51 Tex. 401

MICHAEL HORAN

v.A. B. FRANK ET AL.

Supreme Court of Texas.

1879.

APPEAL from Bexar. Tried below before the Hon. G. H. Noonan.

In the spring of 1877, A. B. Frank and M. Goldfrank, members of the commercial firm of Goldfrank, Frank & Co., purchased from Joseph Landa a lot of ground in the city of San Antonio. On the 11th of July, Goldfrank, Frank & Co., of which firm A. B. Frank and M. Goldfrank were the active and resident partners, made a written contract with Benjamin Hyatt and John F. Hinman, a building firm in business under the style of Hyatt & Hinman, to erect for them a block of three stores, extending from street to street and entirely covering a plat of ground described in the petition. Hyatt & Hinman proceeded to carry out their contract, and employed the plaintiff, Michael Horan, to haul materials for the construction of the building. He, working under this contract, performed labor in the construction of the buildings proposed, amounting in value to $297, and received in cash, corn, and hay, $77.65; leaving still due him for labor $219.35.

Hyatt & Hinman having given up their job and not paying plaintiff, he attempted to fix his lien, under the statute, by “causing a bill of particulars to be made out in triplicate, together with a description of the lot and the buildings thereon, all duly sworn to, and by having one of the said bills of particulars and descriptions recorded in the office of the county clerk of Bexar county, furnishing one to A. B. Frank and one to J. F. Hinman, and by doing all other things requisite to be done under the statute to fix and secure a lien, if one could exist.”

This suit was brought to enforce a lien on the lot and buildings and to obtain a personal judgment against Hyatt & Hinman, and also to obtain a personal judgment against Frank & Goldfrank, in case there remained anything due from them to Hyatt & Hinman.

The defendants Hyatt & Hinman filed an appearance only.

The defendants Frank & Goldfrank pleaded to the jurisdiction of the District Court, on the ground that the amount in controversy was less than $500, and that the plaintiff had no lien on the real estate described in the petition, by reason of his being only a sub-contractor, and not an original contractor.

The court sustained the plea to the jurisdiction and dismissed the case.

The plaintiff moved for a new trial, which was overruled.

The plaintiff appealed and assigned for error--

First. The court erred in sustaining the defendants' plea to the jurisdiction and dismissing the case.

Second. The court erred in overruling plaintiff's motion for a new trial.

J. H. McLeary, for appellant.--The plaintiff, being a subcontractor immediately under the original contractor, has a lien on the buildings and lot of ground necessarily connected therewith to the amount of his labor performed in the construction of the same. (Const., art. 16, sec. 37; Laws 1876, ch. 81, p. 76; Laws 1871, 2d Sess., pp. 28, 29; Const. 1870, art. 12, sec. 47; Waldroff v. Scott, 46 Tex., 1-6; Odum v. Loomis, 2 Tex. Law Jour., 388, 389; Gaylord v. Loughridge, 50 Tex., 573; Phillips on Liens, secs. 58, 61, 62, 251, 253, 256, 311, 312; Derrickson v. Nagle, 2 Phila., 120; Davis v. Livingston, 29 Cal., 283.)

It certainly was not the intention of the members of the Constitutional Convention to provide liens for laborers on public buildings, railroads, &c., and to deny the same right to laborers on other buildings. Such a conclusion cannot be entertained.

What would have been the position of this question had the sixth section been omitted from the act of 1876?

The appellee could not then say that the rights given the sub-contractor by the Constitution had been limited, and there would be no doubts as to his right to enforce the lien.

Then, unless the Legislature could, in the sixth section, repeal the Constitution, the sub-contractor has a lien on the buildings and lots for the value of his labor, and the District Court had...