Trammell v. Mount
| Decision Date | 03 May 1887 |
| Parties | TRAMMELL and others v. MOUNT. |
| Court | Texas Supreme Court |
Cowan & Posey, S. H. Cowan, and G. S. Jones, for appellants. No counsel for appellee.
The appellee sued the firm of Lawson, Smith & Co. to recover an amount alleged to be due him on account of a contract, in which, for a specified sum, the appellee agreed to furnish the work and material necessary to build for the appellants four stone walls of a house of dimensions specified in the contract. He also prayed for the foreclosure of a mechanic's lien upon the improvements made by him, and the lots upon which they were situated. The firm of Thos. Trammell & Co. were made defendants under an allegation that they claimed some kind of interest in the property. Judgment was rendered for the plaintiff for the sum of $1,361.20, and foreclosing a lien upon the lots and premises concerning which the contract was made. The sheriff was ordered to sell these as under execution; satisfy the lien and costs out of the proceeds of sale; and pay the remainder to the defendants Lawson, Smith & Co. From this judgment the defendants Thos. Trammell & Co. have appealed to this court.
The facts are: Lawson, Smith & Co. entered into a verbal contract with Mount, in which the latter agreed to build the walls of a stone house for Lawson, Smith & Co., furnishing all the labor and material necessary for that purpose, and to finish the work in 90 days from January 12, 1874, they to pay him therefor $2,300 in such sums as he might need from time to time to carry on the work, and the remainder at its completion. Mount commenced work, and had provided a large quantity of stone, some of which had been used in building the walls, and the remainder fully prepared for use in this way, when Lawson, Smith & Co. notified him that they were unable to comply with their part of the contract, and Mount was forced to quit work. This was on the eighth of March, 1884, and on the eighteenth of the same month Trammell & Co. had an attachment levied upon the lot upon which the stone house was in the course of being built, and they were subsequently sold in satisfaction of the attachment lien, and bought in by Trammell & Co. On the twenty-fourth of March, 1884, Mount filed with the county clerk, and had recorded, a bill of particulars of the work done and material furnished by him, and its value, and had a duplicate served upon the defendants Lawson, Smith & Co. It was developed by the evidence that about 400 perches of the stone included in the bill of particulars did not enter into the structure of the walls, and that it was not delivered upon the premises; but that it was prepared for use in the building, and left one mile and a half from the place where the walls were in course of construction. It is claimed by the appellants that for this material, and the work done upon it, the appellee has no lien upon the premises. According to the testimony, the work done upon this stone cost $1.50 per perch, and it is for this amount that the lien is claimed. Our statute says that any person or firm, lumber dealer, artisan, or mechanic who may labor or furnish material to erect any house or improvement, shall have a lien on such house, etc., and shall have a lien on the lot or lots of land necessarily connected therewith to secure payment for labor done, lumber, material, machinery, or fixtures and tools furnished, for construction or repairs. If, therefore, the labor on the stone which was not delivered at the place where the walls were being built was furnished for their construction, the mechanic's lien attached to the property subjected to it by the judgment below, unless it was necessary to the lien that this stone should have actually entered into the construction of the walls.
It is held by some authorities that the lien cannot exist unless the material for the furnishing of which it is sought has actually gone into the improvement of the property for which it was intended, (Hunter v. Blanchard, 18 Ill. 318; Taggard v. Buckmore, 42 Me. 81; Schulenberg v. Prairie Home Inst. Co., 65 Mo. 295;) by others it is held that, if the material is delivered at or near the building, it is sufficient, (Esslinger v. Huebner, 22 Wis. 632; Neilson v. Iowa E. R. Co., 51 Iowa, 190, 1 N. W. Rep. 434; Beckel v. Petticrew, 6 Ohio St. 247;) and by others the lien is upheld though the material be not delivered at or near the building, and never enters into its construction, (Hinchman v. Graham, 2...
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