Mood v. Methodist Episcopal Church South, of Cisco

• Decision Date: 07 December 1927
• Docket Number: (Motion No. 7696; No. 963 - 4789.)
• Citation: 300 S.W. 30
• Parties: MOOD v. METHODIST EPISCOPAL CHURCH SOUTH, OF CISCO, et al.
• Court: Texas Supreme Court

300 S.W. 30

MOOD v. METHODIST EPISCOPAL CHURCH SOUTH, OF CISCO, et al.

(Motion No. 7696; No. 963 - 4789.)

Commission of Appeals of Texas, Section A.

December 7, 1927.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

On rehearing. Former opinion modified.

For former opinion, see 296 S. W. 506. See, also, 289 S. W. 461.

Hawkins, Hawkins & David, of Breckenridge, for plaintiff in error Mood.

Thos. E. Hayden, Jr., of Abilene, for defendant in error L. N. Stuckey.

Butts & Wright and J. D. Barker, all of Cisco, for other defendants in error.

NICKELS, J.

In the original opinion (296 S. W. 506) it was held that causes of action were alternatively stated by Mood et al., as follows: (a) Upon the written contract and specifications as modified or novated in parts from time to time; (b) upon the contract in respect to work done before the time of possible mutual abandonment of its unperformed requirements and upon quantum meruit thereafter; (c) upon quantum meruit in whole because of possible mutual rescission of the original contract both in respect to then unperformed work, and in respect to that which had then been performed. Consequently, it was ruled that no part of the cause of action was, as a matter of law, subject to the bar of limitations, and that the trial court erred in holding otherwise as, also, in giving peremptory instruction in respect to that part of the cause of action which was not then thought to be barred. The motion for rehearing filed by defendants in error relate to these rulings. It does not present matter which was not before taken into account, but we have again given the questions careful attention. We adhere to our formerly expressed views and recommend that the motion be overruled.

In the petition in error an attack is made upon the ruling of the Court of Civil Appeals in respect to the matter of a lien. That assignment we did not discuss in the former opinion, but it was impliedly overruled. National Oil & Pipe Line Co v. Teel, 95 Tex. 586, 68 S. W. 979. To that action exception is taken in the motion filed by plaintiff in error.

In section 37, art. 16, of the Constitution, "mechanics, artisans and materialmen, of every class" are given "a lien upon the buildings and articles made or repaired by them" to the extent of "their labor done thereon, or material furnished therefor." The language employed is very broad in its meaning in respect to "labor done"; "every class" of "artisans and mechanics" is named; and the lien has reference to "their labor." The comprehensiveness of the provision in its relation to material is indicated in Bassett v. Mills, 89 Tex. 162, 34 S. W. 93, and Warner El. Co. v. Maverick, 88 Tex. 489, 30 S. W. 437, 31 S. W. 353, 499.

In the case made upon the contract, in any view, the owners were to pay for the materials and labor (except that of Mood and Page) which these "contractors"...