Peterson v. Stolz

Decision Date09 February 1925
Docket Number(No. 1172.)<SMALL><SUP>*</SUP></SMALL>
Citation269 S.W. 113
PartiesPETERSON v. STOLZ.
CourtTexas Court of Appeals

Appeal from District Court, Jefferson County; E. A. McDowell, Judge.

Action by L. W. Stolz against Mrs. Mattie Peterson. Judgment for plaintiff, and defendant appeals. Affirmed in part, and reversed and rendered in part.

C. A. Lord, of Beaumont, for appellant.

C. E. Pool and Howth, Adams & Hart, all of Beaumont, for appellee.

O'QUINN, J.

Appellee, as plaintiff below, brought this suit in the district court of Jefferson county, Tex., to recover a balance due him on the purchase price of a certain monument or mausoleum constructed by appellee on appellant's burial lot situated in the Port Arthur cemetery at Port Arthur, Tex., under the following written contract:

                                    Contract
                $7200.00 and monument on lot.     10% Earnest
                Agent's No. ____.                 money due on
                Date, 3/15 1920.                  April 1st, 1920
                County of Jefferson,              Cos. No. ____
                State of Texas.                   Received ____
                                                  Bldg. Complete
                                                  Apr. 22, 1921
                                                  Shipped Cd. 720.00.
                

This is to certify that I have this day bought of L. W. Stolz Marble & Granite Works of Beaumont, Texas, hereinafter known as The Company, one monument as per size and material given below.

                Design No. Vault #421.             Dimensions:
                Epitaph No. ____.                  As per blue prints.
                Material, Florence exterior.
                Color, Light Cloud Interior.       All bronz doors, B-54.
                Ship to ____.
                Shipping point, L. W. Stolz Marble & Gr Works.
                County to erect.                   Peterson Res'd letters
                State ____.                        over Door.
                

Inscription.

(The words born and died, being superfluous, will be left off, unless otherwise ordered. Only one inscription free, unless order is for a double monument, in which event write the names and dates below in the same order they are to be placed on the monument.)

                Name ____.                   Name ____.
                Inscription on Monument:
                Date of Birth ____.          Date of Birth ____.
                Date of Birth ____.          Date of Birth ____.
                

The Company agrees to deliver said monument on cars at their plant on or before 90 days from receipt of contract, or within a reasonable length of time thereafter, for which I (we) promise to pay The Company or order the sum of Seventy-Two Hundred and no/100 Dollars, less railroad freight charges, at their office in Beaumont, Texas. Any unavoidable delay in delivery of said monument shall not invalidate this contract, and furthermore all agreements are mentioned in this contract, and no verbal agreements with the agent will be recognized by The Company. It is also agreed that this order is absolute and cannot be countermanded, and that the monument is to remain the property of the Company until paid for in full, and I (we) agree to pay interest at the legal rate on deferred payments, together with 10 per cent. attorney fees if collected through an attorney.

Witness: J. H. Bernhardt.

                                     [Signed] Mrs. Chas. Peterson.
                

Sold by L. W. Stolz. J. H. B.

It is understood that the agent taking this order will see that the monument is properly erected at the grave of the deceased upon arrival, without additional charge, personally superintending the erection, or making satisfactory arrangements with another party to erect same.

This instrument was filed for record as a chattel mortgage, and duly recorded in the chattel mortgage records of Jefferson county, Tex., July 21, 1922.

In his petition plaintiff alleged that he had fully complied with his contract, had erected the monument or mausoleum in question, and that same had been accepted by appellant; that appellant had paid him the sum of $4,704.78, leaving a balance due him of $2,495.22, together with interest thereon at the rate of 6 per cent. from May 5, 1921, the date appellant accepted said monument or mausoleum, and 10 per cent. attorney's fees thereon.

Plaintiff also alleged that he had a valid and subsisting contractor's and mechanic's lien upon said monument or mausoleum and the lot upon which it was situated, under article 16, § 37, of the Constitution of the state of Texas, as security for the payment of the balance due him under said contract for the labor and material furnished by him for the erection of said monument or mausoleum, and prayed for judgment against the defendant for his debt, interest, attorneys' fees, and for foreclosure of his asserted constitutional mechanic's and materialman's lien on the monument or mausoleum and the lot, for the satisfaction of his debt.

Defendant answered by general demurrer, general denial, and specially:

(1) That if plaintiff had ever had any such lien as was asserted, that same was barred by the two and three years statutes of limitation; and (2) "That the lot of land described in plaintiff's said petition is a lot in a cemetery, where the body of her deceased husband has been interred, and where the defendant intends that her sepulcher shall be made at her death, and where she intends to be buried; and that the said lot is exempt from all liens and from all forced sales under the statutes of this state; and she alleges that the monument in question and referred to in plaintiff's petition has become a part of said burial lot, and that the purported lien asserted by the plaintiff is not subject to foreclosure, and that the said lot nor the said monument can be made subject to the indebtedness asserted by the plaintiff. And in this connection the defendant alleges that the said monument has been deeply imbedded in the said lot of land, and cannot be removed therefrom without great injury both to the land and to the said monument, and that it was at all times the intention of the parties that the said monument should become a part of said land and belong thereto, and not be subject to removal therefrom."

To this answer of the defendant, plaintiff replied by supplemental petition, by general demurrer, general denial, and specially that the defendant had, in the contract above set out, given to plaintiff a chattel mortgage or lien upon the monument or mausoleum before the material in said monument was placed upon the burial lot, by reason of which the defendant was estopped to deny that plaintiff had a lien upon the said monument and upon the lot where same was situated, and again asserted his lien upon the monument and the lot, and prayed for foreclosure of same.

The case was tried before the court without a jury, and judgment rendered for plaintiff for the amount of his debt, interest, and attorneys' fees, and decreed that plaintiff had a valid and subsisting lien on the lot in question, together with the monument thereon, for the security of his debt, for which judgment was rendered, and judgment rendered foreclosing the said lien, except as for the attorneys' fees, against the said lot and monument thereon, from which judgment the defendant has appealed.

The record reflects that Mrs. Peterson, appellant, is the widow of Capt. Chas. Peterson, and that she lived in Port Arthur, Tex. Appellee is engaged in the marble and granite business, and the sole owner of what is known as the L. W. Stolz Marble & Granite Works, situated at Beaumont, Tex., and dealing in tombstones and monuments, and erecting monuments and mausoleums. Capt. Chas. Peterson, husband of appellant, was dead, and had been buried in lot 12, row E, in the public cemetry at Port Arthur, Tex. Mrs Peterson desired to erect a suitable monument or mausoleum on her said burial lot, and to deposit therein the remains of her dead husband, and for that purpose entered into the contract above set out with appellee. The appellee exhibited to appellant a book containing cuts or designs of tombstones, monuments, and mausoleums sent out by the Vermont Marble Company, and she selected the design of the one erected on the burial lot under the contract aforesaid. Appellant ordered from the Vermont Marble Company the material, consisting of many pieces already cut and prepared to be set up and made into the monument, and when same was received promptly erected the monument, and same was accepted by Mrs. Peterson.

Appellant brings the case before us, urging four propositions, presenting the questions:

(1) That under the evidence appellee was not an artisan, mechanic, or materialman, and, therefore, did not make or repair any building and could not have a constitutional lien for labor done or material furnished.

(2) The monument or mausoleum in question was not a "building" within the contemplation of article 16, § 37, of the Constitution, and hence no lien could arise by virtue of the Constitution.

(3) That appellant and appellee, in making the contract for the monument or mausoleum in question, never contemplated that any constitutional lien should attach to the burial lot, because in the contract for the monument or mausoleum they created a chattel mortgage on same to secure the payment of the contract price.

(4) That neither the lot of land in the cemetery used by the appellant for the purposes of sepulture, nor the monument or mausoleum thereon, is subject to any constitutional mechanic's or materialman's lien under the Constitution and laws of the state of Texas, because such lot is exempt from every character of forced sale in this state, and cannot be the subject of a lien after having been dedicated to burial purposes.

We shall discuss these propositions in their inverse order.

We think appellant's fourth assignment should be sustained. By the great weight of authority, when land has been definitely appropriated to burial purposes, it cannot be conveyed as other property so as to interfere with the use and purposes to which it has been devoted. Burial lots, whether public or private, are not the subject of trade and commerce, and, after...

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  • In re Lp
    • United States
    • U.S. Bankruptcy Court — Southern District of Texas
    • August 19, 2011
    ...sub nom. Quincy Lee Co. v. Lodal & Bain Eng'rs, Inc., 602 S.W.2d 262 (Tex.1980) (emphasis added) (citing Peterson v. Stolz, 269 S.W. 113, 116 (Tex.Civ.App.-Beaumont 1925, writ ref'd)). Other courts have held that the definition of “building” depends on “the particular facts and circumstance......
  • State ex rel. Stephan v. Lane
    • United States
    • Kansas Supreme Court
    • July 18, 1980
    ...Leleux v. Viator, 55 So.2d 662 (La.App.1951); St. Peter's Evan. Luth. Ch. v. Kleinfelter, 96 Pa.Super. 146 (1929); Peterson v. Stolz, 269 S.W. 113 (Tex.Civ.App.1925). A cemetery is a place or area of ground set apart for the burial of the dead. The law contemplates two classes of cemeteries......
  • United Cemeteries Co. v. Strother
    • United States
    • Missouri Supreme Court
    • June 10, 1933
    ...v. Maplewood Cemetery Assn. (Minn.), 89 N.W. 872; Fidelity Union Trust Co. v. Union Cemetery Assn. (N. J. Eq.), 145 A. 537; Peterson v. Stolz (Tex.), 269 S.W. 113; 11 C. J. sec. 19.] Once a cemetery, always a cemetery, is not quite true, but nearly so. [Tracy v. Bittle, 213 Mo. 302, 112 S.W......
  • United Cemeteries Co. v. Strother
    • United States
    • Missouri Supreme Court
    • June 10, 1933
    ...v. Maplewood Cemetery Assn. (Minn.), 89 N.W. 872; Fidelity Union Trust Co. v. Union Cemetery Assn. (N.J. Eq.), 145 Atl. 537; Peterson v. Stolz (Tex.), 269 S.W. 113; 11 C.J. 58, sec. 19.] Once a cemetery, always a cemetery, is not quite true, but nearly so. [Tracy v. Bittle, 213 Mo. 302, 112......
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