Security Lumber Co. v. Weighard Const. Co., 7784
| Citation | 413 S.W.2d 745 |
| Decision Date | 07 March 1967 |
| Docket Number | No. 7784,7784 |
| Parties | SECURITY LUMBER COMPANY, Inc., et al., Appellant, v. WEIGHARD CONSTRUCTION COMPANY et al., Appellees. . Texarkana |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
William Key Wilde, Ronald C. Kline, Bracewell & Patterson, Edgar E. Townes, Jr., Townes & Townes, Houston, for appellant.
Sam Dawkins, Jr., Eastham & Meyer, Sam S. Minter, Houston, for appellees.
Security Lumber Company, Inc., filed an action for judgment on a sworn account for building material furnished Weighard Construction Company, and used by it in the construction of improvements on three separate parcels of real property, and to foreclose perfected materialman's liens securing payment of the value of the material. Others were joined as defendants, four as guarantors of the material account, and the remaining parties because they claimed an interest in or lien upon the parcels of real property. Four of the defendants in the trial court did not appeal, all other parties have perfected appeals and are appellants in some phase of this appellate action. The pleadings of the defendants, the facts proved and the judgment rendered will be mentioned when necessary to clarify the issues discussed.
The Appeal of Security Lumber Company, Inc.
The first material furnished by Security to Weighard Construction Company was delivered to job sites at each of the three separate lots on March 7, 28, and April 3, 1961. University Savings & Loan Association's deed of trust liens on the several lots were filed April 6, 1961. Thereafter more material was furnished by the lumber company to the construction company and delivered to the job sites April 29, May 15, and May 25, 1961. The judgment rendered by the trial court valued the material furnished by Security to Weighard Construction Company prior to the recordation of the University Savings & Loan Association's deed of trust lien at $2,494.98, and awarded Security judgment therefor and foreclosed Security's materialman's liens securing payment thereof upon the three parcels of real property.
Security Lumber Company Inc.'s written notice of appeal and the recitation in its appeal bond specify that it is appealing 'from the judgment of said court rentered in said cause'; however, its brief limits the scope of appeal to the question of priority between its materialman's liens and the building & loan association's deed of trust liens. As appellant, Security Lumber Company Inc.' § position and argument is that 'the mechanic's and materialman's liens have their inception from and relate back to the date the lien claimant originally furnishes the first materials to the owners and are superior to any mortgage created thereafter.' University Savings & Loan Association counters with the argument 'that each * * * delivery of material is a separate and distinct contract, * * * one in a series of contracts, and that the lien for materials furnished is only superior to a recorded deed of trust lien for those materials furnished prior to the recording of the deed of trust.'
Weighard Construction Company arranged with Security to furnish it building material in an open account for three of its building projects before the work thereon began. The credit arrangement contemplated delivery of the material at the job sites when ordered by Weighard's representative, it may be inferred from subsequent action of the parties, but did not include an agreement specifying the time payment for the material would be made. Unquestionably the over-all contract for building material between the lumber company and the construction company originated at or before the first delivery of material. The arrangement entered into appears to have been intended by the parties to be but one contract for material, with provision that delivery be made as ordered. This interpretation of the agreement as a unified contract is fortified by evidence that the lumber company required the construction company to give security for the payment of the entire material count in the form of guaranty letters executed by third parties, the quotation at the time of the arrangement of prices that would be charged for material when ordered, as well as the fact that delivery was actually made on several separate dates. The material contract and first delivery thereunder predates recordation of the deed of trust liens.
Although the facts in Oriental Hotel Company v. Griffiths, 88 Tex. 574, 33 S.W. 652, 30 A.L.R. 765 (1895) disclose it as a case factually unlike the present, yet it significantly determines that liens for labor and material have their inception in the contract therefor. Such reasoning has application here, Security materialman's liens have their inception in the material contract. The materialman's lien is given priority by legislative preference over any lien or encumbrance subsequent in date to the inception of the lien. Vernon's Ann.Tex.Rev.Civ.Stat. art. 5459 (1958). Under the circumstances shown here, if each delivery is construed to be a separate contract, the supplier of building material would hazard loss of his lien priority and his property unless he examined the lien records before each delivery and was governed thereby, regardless of his arrangement with the contractor. It is not probable that the legislature meant to put him at such disadvantage. The trial court judgment subordinating a part of the materialman's lien to the lien of the deed of trust must be revised.
J. Lewellen and George H. Clark
Weighard Construction Company cross-assigned a point of error presenting for review the action of the trial court in declining to hold the two year statute of limitation applied in determining priority between the materialman's and deed of trust liens, together with cross-points setting out that such court erred in admitting in evidence delivery receipts Security Lumber Company allegedly received from Weighard Construction Company for the purpose of proving delivery of material and a no evidence point respecting material delivery and use. Security Lumber Company, Inc., moved to strike Weighard's cross-points because University failed to file an appeal bond. University replied that it was not required to file an appeal bond, as Security appealed from the judgment in its entirety and thereby brought the entire...
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University Savings & Loan Ass'n v. Security Lumber Co., B-261
...two lots for the value of all materials furnished for construction of improvements on their respective lots. Security Lumber Company v. Wieghard Construction Co., 413 S.W.2d 745. We affirm the judgment of the court of civil A joint application for writ of error was filed in this court by Un......
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