Marathon Metallic Bldg. Co. v. Texas Nat. Bank of Waco

• Decision Date: 11 March 1976
• Docket Number: No. 5494,5494
• Parties: MARATHON METALLIC BUILDING COMPANY, Appellant, v. The TEXAS NATIONAL BANK OF WACO, Appellee.
• Court: Texas Court of Appeals

Page 743

534 S.W.2d 743

MARATHON METALLIC BUILDING COMPANY, Appellant, v. The TEXAS NATIONAL BANK OF WACO, Appellee.

No. 5494.

Court of Civil Appeals of Texas,

Waco.

March 11, 1976.

Moody & Crow, Frank M. Fitzpatrick, Jr., Waco, for appellant.

Naman, Howell, Smith & Chase, Paul H. Hubbard, Waco, for appellee.

OPINION

JAMES, Justice.

This case involves the validity of a materialman's lien claimed by Appellant, Marathon Metallic Building Company. The trial court held the claimed materialman's lien to be invalid. We hold the lien to be valid and reverse and render a portion of the trial court's judgment and affirm the balance thereof .

This case began on October 1, 1974, with an application for writ of garnishment by Appellee, The Texas National Bank of Waco, as garnishor, against O'Grady Containers, Inc., William D. O'Grady, and George W. Moore, as garnishees. Prior to the institution of the garnishment suit, Appellee Texas National had on September 13, 1974, obtained a judgment in a District Court of McLennan County, Texas, against R. J. Welch Construction Company and others in the amount of $59,154.83 and attorneys' fees plus some additional amounts against particular defendants, the details of which are not material to the case at bar.

Based upon said judgment, as stated, Texas National filed the application for writ of garnishment against O'Grady Containers, Inc., William D. O'Grady and George W. Moore as garnishees. The garnishees answered to the effect that they owed R. J. Welch Construction Co. the sum of $3860.00, which amount represented a 10% Retainage of the contract price of some improvements that had been made by R. J. Welch Construction Co. upon premises upon which the O'Grady Container's, Inc., plant was located, but which property the undisputed proof showed was owned by William D. O'Grady and George W . Moore individually.

Garnishees thereafter filed a Bill of Interpleader wherein they paid the $3860.00 funds in question into the registry of the trial court and impleaded and brought into the suit R. J. Welch Construction Co., R. J. Welch, Sr., R. J. Welch, Jr., Marathon Metallic Building Co., Inc. (Appellant herein), Allen Glass Co., Crawford Door Sales, Owens-Corning Fiber Glass Corp., and Centex Manufacturing Co. All of these abovenamed parties so brought into the suit by the Bill of Interpleader were disposed of by the trial court's judgment, and none are of concern to this appeal except Appellant Marathon Metallic Building Co., Inc., and Centex Manufacturing Co.

Appellant Marathon was a material supplier on the construction project at the premises owned by garnishees Messrs. O'Grady and Moore, and in such capacity had made claim for a materialmen's lien against garnishees because of non-payment of the account (in the asserted amount of $20,583.89) owed to Appellant Marathon by R. J. Welch Construction Co. As a result of said claim, Appellant Marthon was named in the Bill of Interpleader as a Defendant, was brought into the suit, and thereupon filed its answer to said Bill of Interpleader and its cross-action alleging its priority claim to the impleaded funds because of its asserted properly perfected Mechanic's and Materialmen's Lien under the provisions of the Hardeman Act, same being Articles 5452 et seq., Vernon's Texas Civil Statutes. Marathon sought judgment for recovery of the amount owed it by R. J. Welch Construction Co. to the extent that it could be satisfied from the impleaded funds, and for foreclosure of its lien. Likewise Centex Manufacturing Co. sought similar relief for $220.50 allegedly owed it by R. J. Welch Construction Co. for materials supplied to this same job, and for foreclosure of its asserted lien.

Trial was had to the court without a jury, pursuant to which the trial court's judgment made the following disposition of the $3860.00 impleaded funds on hand: (1) The court costs were ordered paid; then (2) attorney's fees in the amount of $750.00 were awarded to Interpleaders O'Grady Containers, Inc., O'Grady and Moore; (3) $220.50 was awarded to Centex Manufacturing Co. in payment of its claim and in satisfaction of its lien, and (4) the balance of such funds was awarded to Appellee Texas National Bank of Waco. That is to say, Texas National was awarded the $3860.00 less $970.50 and costs of court. The trial court further adjudged that Appellant's Marathon's asserted materialman's lien was invalid and that Appellant take nothing, from which judgment Marathon appeals. We reverse and render judgment in favor of Appellant Marthon for the funds which were awarded to Appellee Texas National in the trial court's judgment, and hold that Appellee take nothing.

Appellant Marathon asserts that the trial court's finding that Appellant's materialman's lien was invalid is error because (1) such finding is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust; and (2) for the further reason that Appellant had substantially complied with the statutory prerequisites for the perfecting of such materialman's lien, under the provisions of Article 5452 et seq., Vernon's Texas Civil Statutes. We sustain these contentions.

Appellant Marathon is the asserted holder of a materialman's lien as a supplier to R. J. Welch Construction Co., and Appellee Texas National is a garnishment judgment creditor of R. J. Welch Construction Co. The controversy is between these two parties, and the solution thereof depends upon whether Marathon's asserted lien is valid. If Marathon's lien is valid, then the trial court's judgment must be reversed and rendered, to the extent necessary to permit Marathon to recover the amount heretofore awarded to Texas National. If on the other hand Marathon's lien is invalid, then the trial court's judgment must be affirmed, because in such event Appellee Texas National would be entitled to the recovery awarded to Appellee by the trial court's judgment.

In order to determine the validity of Marathon's lien we are obliged to construe the language of a portion of Article 5455, V.A.T .S., insofar as it applies to the facts of our case, which language is as follows:

'Art. 5455. Form of claim.

'An affidavit claiming a lien filed for record by any one claiming the benefit of this Act shall be signed by the claimant or by some person on his behalf and shall contain in substance the following:

'b. The name of the owner or reputed owner, if known.' (emphasis supplied).

In the case at bar, Marathon, a Houstonbased firm, furnished materials to R. J. Welch Construction Co., a corporation headquartered at Waco, Texas, for the construction of a building located in Waco, which Welch had contracted to build. The contract for the construction of such building was dated February 25, 1974, and the parties signing same were R. J. Welch Construction Co. (signed by R. J. Welch, Jr.), W. G. (Don) Ballew, shown as general contractor, and O'Grady Containers, Inc. (signed by George W. Moore) .

R. J. Welch Construction Co. sent a purchase order dated March 1, 1974, to Marathon wherein Welch ordered materials for the job in question; which showed: 'Builder's customer: O'Grady Containers, 200 La Salle St., Waco, Texas.'

After Marathon had furnished materials for this job in the amount of $20,583.89, and by August 1974 the account had become delinquent, Dennis McCarty, Assistant Regional Manager for Marathon, made a personal trip to Waco on or about August 20, 1974, to investigate the cause of Welch's nonpayment of the account. He went out to 200 La Salle Street in Waco, Texas, and there found the manufacturing plant of O'Grady Containers, Inc., which was a plant manufacturing corrugated containers. He recognized Marathon's materials in the newly constructed building which had the sign 'O'Grady Containers, Inc.' displayed upon it. He talked to a receptionist but was unable to contact any officials of the company at the time because none were present. He later talked to R. J. Welch, Jr., an officer of R. J. Welch Construction Co., and to W. G. 'Don' Ballew, the man whose name was signed to the above-described Welch-O'Grady Containers contract as 'General Contractor'. (In this connection, although Mr. Ballew was signed as 'general contractor', in truth and in fact he was hired by William D. O'Grady and George W . Moore to secure people and firms to do parts of the construction job in question and to supervise the overall job, and additionally to construct an office inside the building). Don Ballew told McCarty that R. J. Welch Construction Co. had been paid all but about $4000.00 of their contract price to construct the building. Learning these things, Dennis McCarty returned to Houston and caused an attorney, a Mr. Phil Smith, to prepare (in several copies) the 'Affidavit of Materialman's Lien' as well as a letter addressed to 'O'Grady Containers, Inc.', as owner of the property, which letter was labelled, 'Notice of Claim of Materialman's Lien', and a letter addressed to R. J. Welch Construction Co. labelled, 'Notice of Claim of Materialman's Lien.'

The Affidavit of Materialman's Lien was shown to be for the purpose of fixing a lien pursuant to Article 5452 et seq., V.A.T.S. 'upon the real estate hereinafter described' for the $20,583.89 worth of materials furnished by Marathon to R. J. Welch Construction Co. The affidavit recited that 'O'Grady Containers, Inc., is the owner or reputed owner of the land described herein and the improvements constructed thereon.' Attorney Smith prepared all the papers in Houston except the property description, based upon the information furnished him by Dennis McCarty. Lawyer Smith secured the services of Honorable Ron Moody, a Waco, Texas, lawyer to secure the property description for the lien papers. Mr. Moody first went to the McLennan County Tax Assessor-Collector's office and located the property on the tax maps of the City of Waco, then went out and inspected the property on the ground, and...