Shields v. Morrow

• Decision Date: 01 January 1879
• Citation: 51 Tex. 393
• Parties: KANE SHIELDS v. JOHN MORROW.
• Court: Texas Supreme Court

51 Tex. 393

KANE SHIELDS

v.JOHN MORROW.

Supreme Court of Texas.

1879.

APPEAL from Collin. Tried below before the Hon. Joseph Bledsoe.

The opinion states the case.

White & Plowman and R. W. Goldthwaite, for appellant.--The court erred in sustaining the demurrer and exceptions of defendant, John Morrow, to plaintiff's amended original petition.

The statute, in plain and comprehensive terms, gives a lien to any person who may labor or furnish material upon any house improvement, &c. (Paschal's Dig., art. 7112.)

The lien springs out of and results eo instanti from the thing done which gives the lien. This is the natural and reasonable intendment, unless there is something in the act conferring the lien which prevents this result and postpones, by express terms or clear implication, the attaching of the lien at the time the labor is done or the material furnished for which the lien is given. (Phillips on Liens, 215.)

Statutes are to be read according to the natural and obvious import of their language. (Engelking v. Von Wamel, 26 Tex., 471; Sedg. on Stat. and Const. Laws, 218; Forrest v. Forrest, 10 Barb., (Sup. Ct.,) 46.)

In the various mechanic's-lien acts of the several States in which it has been determined that the lien did not attach when the labor was done or the material furnished, there is some express provision by which the lien is postponed until some other thing is done by the laborer or material-man, as is the case in the District of Columbia and in New York, where it is provided that any person, &c., upon filing the notice prescribed in the following section shall have a lien. (Green v. Green, 16 Ind., 253; Rev. Stats. of D. C., p. 83; Act relating to Kings and Queens counties, N. Y.; Kneeland on Liens, 469; 2 Abb. Prac., (N. Y.,) 93, 99.)

By our statute, the lien given to the mechanic is not dependent on whether the owner owes the contractor, or whether he files his lien within six months after the debt from the owner to the contractor is due, or not. The right to the lien is given to the laborer or material-man; it is against the building or improvement, not against the owner, and depends not on whether the contractor owes the material-man or the laborer. A right to payment of his debt by enforcing his lien against the improvement cannot be discharged by any agreement, or contract, or satisfaction made or had between the owner and contractor. This would be allowing one man's rights to be extinguished by the actions of others, without his consent, and against his will, and to his injury. A, by payment to B of a debt due from A to B without C's consent, discharges a lien which C has against the property of A for a debt due to C. Where mechanics'-lien laws have, by express terms, made the right of the sub-contractor to depend upon the fact that the owner was indebted to the contractor, the rule would apply; but there is no such provision in the mechanic's-lien act of 1871 above referred to. Payment to the contractor is no satisfaction of or impediment to the lien of the sub-contractor.

BONNER, ASSOCIATE JUSTICE.

The plaintiff, Kane Shields, as a sub-contractor of Leonard Brothers, master builders, sues them and the defendant John Morrow, who was the employer of Leonard Brothers and the owner of certain lots in the city of McKinney and the buildings erected thereon by said Leonard Brothers, to recover of Leonard Brothers the sum of $1,195 due him by them for work and material furnished as a painter and glazier on said buildings, and to enforce his mechanic's lien therefor against the defendant Morrow. Plaintiff alleges that on the 1st of March, 1876, he had finished his sub-contract, and that within less than six months thereafter he had his account, bill of particulars, and a description of the property upon which he claimed his lien recorded in the office of the county clerk, and had a copy of the same served on the defendant Morrow. He does not allege when the contract-price from Morrow to Leonard Brothers became due, or that at the date of the registry of his claim Morrow was indebted in any amount to Leonard Brothers.

Among other demurrers by defendant Morrow, the court sustained the following: That it does not appear from said petition that plaintiff was employed by John Morrow, or by any one authorized by him, to perform labor or furnish material for said buildings; that said petition does not show when the contract between Morrow and Leonard Brothers became due, and that said bill of particulars marked “I” and claim of lien were filed within six months from the time said debt became due from Morrow to Leonard Brothers; that it does not appear from said petition that defendant Morrow was indebted to Leonard Brothers at the date of the filing of said bill of particulars and claim of lien for record; that the bill of particulars and notice of lien were not filed in the office of the clerk of the District Court of Collin county.

Plaintiff declined to amend, and judgment final was rendered for defendant Morrow, and judgment by default, in favor of plaintiff, against defendants Leonard Brothers for the amount of his claim. Plaintiff prosecutes this appeal from that part of the judgment in favor of defendant Morrow.

It is a sufficient answer to so much of plaintiff's petition as sought a lien by virtue of section 37 of article 16 of the Constitution of 1876, that neither at the date of his contract with Leonard Brothers nor of the completion of the same, had this Constitution taken effect.

The rights of the plaintiff, therefore, must be tested by our laws then in force. He relies upon the act of November 17, 1871. (Paschal's Dig., art. 7112.)

So much of this act as is necessary for the purposes of this opinion, provides that any person or firm, artisan or mechanic, who may labor, furnish material, machinery, fixtures, and tools to erect any house improvement, or to repair any building or article, or any improvement whatever, shall have a lien on such article, house, building, fixtures, or improvements, and shall also have a lien on the lot or lots, or land necessarily connected therewith, to secure payment for labor done, material and fixtures furnished for construction or repairs. In order to fix and secure the lien herein provided for, the contractor, mechanic, laborer, or artisan furnishing material, shall have the right at any time within six months after such debt becomes due to file his contract in the office of the district clerk of the county in which such property is situated, and cause the same to be recorded in a book to be kept by the district clerk for that purpose. If the contract be verbal, a duplicate copy of the bill of particulars shall be made under oath, one to be filed and recorded as provided for written contracts, and the other to be served upon the party owing the debt.

The material question arising upon the demurrer, and which is decisive of...