Oriental Hotel Co. v. Griffiths

• Decision Date: 04 November 1895
• Citation: 33 S.W. 652
• Parties: ORIENTAL HOTEL CO. et al. v. GRIFFITHS et al.
• Court: Texas Supreme Court

Page 652

33 S.W. 652

ORIENTAL HOTEL CO. et al. v. GRIFFITHS et al.

Supreme Court of Texas.

November 4, 1895.

Error to court of civil appeals of Fifth supreme judicial district.

Separate actions by John Griffiths and others against the Oriental Hotel Company and others to enforce mechanics' liens. The various actions were consolidated into one, and from the judgment therein rendered defendants appealed to the court of civil appeals, where the judgment was affirmed. Defendants bring error. Reversed.

The following is the opinion of the court of civil appeals (Finley, J.):

"Appellants' first assignment of error applies to appellee Griffiths alone, and is as follows: `The court erred in not sustaining the special exceptions of defendants to the second amended petition of plaintiff John Griffiths, to the effect that said petition was insufficient, in that the plans and specifications of the architect referred to in and made a part of the alleged contract declared upon were not set out in said petition. Such plans and specifications not being set out, defendants were not enabled from the petition of said plaintiff to determine whether or not said plaintiff had complied with his contract.' The contract set out by plaintiff Griffiths in his petition provided: `That for the consideration hereinafter mentioned the parties of the first part agree and bind themselves * * * to erect, build, and complete a hotel building in the city of Dallas, state of Texas, on the corner of Commerce and Akard streets, according to drawings and specifications and addenda to specifications made for same by Isaac S. Taylor, architect; * * * the work to be done under the superintendence and according to the directions of said architect, he having power to reject any portion of the work or materials which in his opinion is not in accordance with said drawings and specifications, and his decision in all such matters shall be final and binding. * * * That the said architect shall be at liberty to make any deviation from or alteration in the plan, form, and construction described and shown in said plans and specifications without in any way affecting the validity of this agreement.' In consideration of the faithful performance of aforesaid work the hotel company agree to pay the contractor the sum of $315,000. Payments to be made upon vouchers from said architect.

"The petition alleged that on August 24, 1891, the said work under said contract being practically done, the said Isaac S. Taylor, architect, did make and deliver to plaintiff his certain certificate in writing, in substance as follows: `No. ____, St. Louis, Mo., August 24, 1891. To Oriental Hotel Company: I hereby certify that John Griffiths is entitled to the payment of thirty-three thousand two hundred and fifty dollars, balance in full for all demands per agreement, for construction of hotel building on corner of Commerce and Akard streets, in city of Dallas, Texas. Isaac S. Taylor. $33,250.00.' That said certificate was the voucher of said architect, provided for in said contract, upon which plaintiff was entitled to payment. That the said architect did, on January 16, 1892, formally, and in strict accordance with the terms of said contract, accept said work, and give to plaintiff Griffiths the certificate therefor, which certificate was in words and figures as follows: `St. Louis, Mo., January 16, 1892. John Griffiths, Esq.—Dear Sir: I consider your contract fulfilled on the Oriental Hotel Building at Dallas, Texas. Respectfully, Isaac S. Taylor.' That the acceptance, evidenced by the aforesaid certificate of January 16, 1892, was a formal acceptance under and in accordance with the terms of said contract. The petition further alleged that on February 4, 1892, at a regular meeting of the board of directors of said defendant, the Oriental Hotel Company, said board duly passed a resolution, and placed the same upon the minutes, accepting said hotel building from said petitioner and other contractors, as fully completed in accordance with said contract. Appellants (defendants below) excepted to said petition, because it failed to set forth the plans and specifications of the architect, the same being shown to be part of the alleged contract, which exception was overruled. The plans and specifications referred to in the contract according to which the building was to be erected were not necessary to be set out in detail by the pleadings of the plaintiff. Especially is this true in view of the allegations that the work was accepted by the architect, and the Oriental Hotel Company as well, as being completed in accordance with the terms of the contract. If the work was accepted as coming up to the contract, as alleged, in the absence of allegations of fraud or mistake there was no issue rendering it proper to go into inquiry whether the work was performed according to the plans and specifications. Phil. Mech. Liens, §§ 136, 254.

"The second and ninth assignments of error raise the same question, and are next presented by appellants. They are: `Second. The court erred in sustaining the exceptions of plaintiffs to the eleventh paragraph of defendants' answer, in that the foreclosure and sale therein set forth discharged the premises described by plaintiffs from any and all mechanics' liens, and transferred the liens of the plaintiffs, if any they ever had, to the proceeds of said sale, and the purchaser under said sale took the premises unincumbered by any mechanic's lien. Said judgment was in no sense void, and the plaintiffs should not have been permitted to attack the same in this, a collateral, action.' `Ninth. The court erred in sustaining the demurrers of the plaintiffs De Wolf, Baker & Smith Co. and Eaton & Prince Co. to the eleventh paragraph of the defendants' answer, in that the judgment of foreclosure and sale and purchase therein set forth had the legal effect of conveying the premises described by plaintiffs to the purchaser, Neiman, discharged of any and all claims of mechanics' liens, and same had the effect of transferring any liens said plaintiffs may have had from the property to the proceeds of said sale, and there could be no second sale to satisfy other mechanic's lien claims.' Appellants urge under these assignments this proposition: `Where there are various liens filed in conformity to the statute on the subject, by different mechanics, lumber and material men, against the same house, for work done and lumber and materials furnished and used in the construction thereof, a proceeding and sale of the house upon any one of the liens will release it from the whole of them, and the purchaser at the sheriff's sale will accordingly hold it entirely discharged therefrom.' The eleventh paragraph of defendants' answer and the exhibits attached thereto show that in a suit brought by one Spellman against the Oriental Hotel Company, wherein Spellman was the sole plaintiff and the hotel company the sole defendant, a judgment was entered on August 26, 1892, in favor of Spellman for $15,719.51, with foreclosure of mechanic's lien on the property in question in this case; that thereafter, on November 1, 1892, the same was sold under order of sale issued on said judgment, and purchased by defendant Neiman for the sum of $250; that after this purchase Neiman notified the sheriff that there were other mechanics' liens on the property sold, and that the sheriff should not pay the entire purchase price to the plaintiff in the writ, but should pay it into court, and ask the court's instructions in regard to the same; that he would claim that the property could not be sold again under another lien. Spellman's judgment was in the usual form of a judgment for foreclosure of lien in Texas, and the clerk of the court was ordered to issue to the sheriff or any constable of Dallas county, Texas, an order of sale, commanding him to sell said Oriental Hotel property as under execution, and to apply the proceeds so realized to the payment and satisfaction of the said Spellman's judgment, and, if there was a surplus, to pay said surplus to the defendant hotel company. The order of sale issued on said judgment conformed thereto, and was an order directing sale to be made for the benefit of said Spellman, and directing the proceeds, after satisfying his debt, to be paid to the hotel company. The record shows that the property in question cost over one-half million dollars. To said eleventh paragraph of defendants' answer plaintiffs demurred, on the ground that the matters therein set up showed no defense to the action, and were irrelevant and immaterial, it appearing from said pleading and exhibits that plaintiffs were not parties to said judgment, and not affected or bound thereby, which demurrer the court sustained.

"The statutory law in force in Texas at the time of the making of the contracts filed as liens, and at the time of bringing the suits, and at the time of the trial of this cause, bearing on this controversy, was, in substance, as follows:

"Article 3164: `Any person or firm who may labor, or furnish material, machinery or fixtures, or to erect any house or improvement, * * * under or by virtue of any contract with the owner thereof, upon complying with this act, shall have a lien on such house, building, fixtures or improvement, and shall also have a lien on the lot necessarily connected therewith, to secure payment for labor, lumber, material, machinery or fixtures. * * *'

"Article 3165: `* * * It shall be the duty of every original contractor, within four months * * * after the indebtedness shall have accrued, to file their contract in the office of the county clerk of the county in which the property is situated, and cause same to be recorded in a book to be kept by the county clerk for that purpose.'

"Article 3167: `* * * The contracts * * * when filed and recorded as above provided, shall be accompanied by a description of the lands, houses and improvements made...