*1 an lightly declare act do not We unconstitutional. Legislature capable of two con is
is that if a statute its val structions, one of which sustains renders unconstitu idity, other and the give it that inter tional, duty to it is our validity pretation sustains Limitations, Cooley’s act. Constitutional Williams, v. ed.) p. 376. (8th Vol. Jones 130. 45 S.W.2d fixing the 1158 as construe H.B. We ciga- purchaser time within which pay- make an advance stamps rette must the debt of the tax ment of user or consumer. the Trial judgment of reverse the
We declaring H.B. render judgment Court and to be unconstitutional. 1158 not and rendered. Reversed Appellants, al., James H. DOYLE et HOMES, INC., SECOND MASTER-BILT Appellee. No. 17082. Appeals Texas, Court of Civil Fort Worth. Jan. 1970. Rehearing Denied Feb. Rehearing Second Denied March
Crocker McDonald, Crocker, & Toy and Worth, Fort appellants.
McGown, Decker, Godfrey, Mc- Mackin, Shipman McClane, & and John McClane, Worth, B. Fort appellee.
OPINION
MASSEY, Chief Justice. appeal is by defendant H. James Doyle daughter and his a judgment Homes, behalf Second Master-Bilt Inc., for debt foreclosure of a mechan- ic’s securing payment lien pur- of same plaintiff’s suant to said erection aof resi- dential structure for defendant. The trial was before the jury. court without a Affirmed. Ann.Tex.Civ.St., the structure on Lot ob- Title build someone
Vernon’s
“Mechanics,
survey
picked
papers
first
“Liens”,
Two,
up
Con
Chapter
viously
Men”,
aforedescribed,
erroneously
prepared,
Material
tractors
locating
(a
them in
site of the build-
statute enacted
used
prescribed”
“Lien
provisions
ing
completing
and in
what was contem-
Legislature according to the
plated
performance
un-
purposes
which were
builder’s
accomplish
*3
Constitution,
der
A
which occurred
the contract.
result
prescribed
Texas’
in
structure, upon delivery
in
to
provides
was that
the
Ann.St.),
Sec.
Vernon’s
owner,
acceptance by
and
located
may labor or furnish
the
was
part
that
who
one
repair
house
on Lot 4 and
one-half
material,
any
to
or
about one-half
about
erect
etc.
on
of a con
Lot 5.
by
under or
virtue
building
or
the
who becomes
(one
tract with the owner
Though
belonged
both lots
to the same
comple
the
after
thereof before or
owner
owner,
herein,
of
defendant
Lot 5
one
was
work, materials, etc.) may have
of
the
lots
his
As
comprising
two
homestead.
building and also
such house or
upon
a lien
noted
heretofore
Lot 5 was not a lot neces-
necessarily connected
or lots
the lot
sarily
necessary
connected
to be in-
with
therefor-upon
payment
therewith to secure
by
used
volved or
the builder in its accom-
provisions of the afore
complying
with
plishment
by
of
owing
the consideration
it
is a
Chapter
The statute
mentioned
Two.
part
under the
Lot 5 was a
of
contract.
the general
of
derogation
remedial one
homestead,
and as
owner’s
such no lien
of
that a house erect
the common law
attach
parties specifically
could
unless the
part
ed
land
thereof. See
becomes
writing
contracted in
to
respect
with
im-
Trueheart, 165
&
William Cameron
Co.
provements to
placed
be
no
thereon. That
Civ.App.,
no writ
(Austin
S.W. 58
lien could have attached to Lot
con-
5 is
hist.) and cases cited.
by
parties.
all
ceded
that
was
There is no contention
lived
Despite the
that
owner
fact
plaintiff
builder
default of
construc-
the course of
during
next door
provisions
of such
complying with
made) was
(under stipulation
tion he
Chapter Two.
was
fact that
consciously
aware of
defendant,
The
who was
owner
on
part it was located
misplaced in that in
4, 5, 6,
7, en-
and
certain lots numbered
made,
finding of fact
A
his homestead.
plaintiff, a
a contract with
tered into
he should
however,
to
effect that
was
contractor,
to erect
semi-fin-
building
subsequently
He
such fact.
known
have
Lot 4. A sur-
building
ished
on
residential
acknowledging
an instrument
executed
builder,
by
vey
made
or for the
con-
according to
by
completion
the builder
to stake-out Lot
purport
which was
possession.
and entered into
tract
of actual con-
preliminary to institution
debt of the owner
to
Prescribed
mistakenly
were
struction.
stakes
performance was
complete
upon builder’s
though the
there-
side boundaries
together
$8,422.50,
principal
sum
running
road
right-angle to the
of were at
annum,
per
at
rate of
with interest
8%
4, 5,
and
Ac-
along in front of Lots
monthly
installments
payable
$77.50.
an-
tually
of the lots
the side boundaries
in an
gled
they
at the road
so that
ended
acceptance
Following
and
completion
approximate
degree angle.
owner
prescribed
building
made the
owner
mis-
fact
the stakes were
observed the
that
and interest
payments
principal
monthly
on
builder,
had
placed.
notified the
who
He
years.
two
one-half
approximately
re-surveyed,
properly
stakes
Lot 4
with
ac-
by an
shown
principal balance
placed.
prin-
original
counting, and based
credits
owing
$8,422.50, with
cipal
at
sum
negligence on
Through
payments
principal
interest as
made to
and its crew of
who were
builder
workmen
$7,425.-
made,
policy.
clear
that
It seems
a balance of
indicated
were
course,
that in the
is,
if the
so contracted
event of
obvious
have
It
resulting
breach
the builder
from its
reason
sustained
owner
complete
according
the structure
the mis-lo-
failure to
of contract
builder’s breach
to the contract the amount of the indebted-
they
structure
cation
to
would be
owing
was en-
ness
builder
damages to which the owner
been
per-
price computable by
the contractual
a de-
the date of the builder’s
titled as of
$8,422.50 the
complete.
duction from the amount of
purportedly
formance was
as “such amount as
amount established
parties provided, in
In their contract the
necessary
would be
part, as follows:
according
plans
said
distinctly understood
“It
is further
specifications.”
improvements, here-
agreed that should the
*4
erected,
any
fail for
in mentioned to be
there has been a resort
to
Where
com-
completed,
to
or
to be
reason
be
fail
of
litigation
inability
as a result
failure or
**
*
contract,
according to the
pleted
parties
on the
of the
to resolve the
* * *
the Second Part
Party
that
of
proper
applied
to
as
amount
be
a deduction
lien
subsisting
a
shall have
valid
for
it
that
the
would seem
burden would be
as
price,
said contract
less such
upon
cast
the owner to establish
evi
complete
be
to
necessary
would
dence,
pleadings,
under
such amount as
improvements
plans
said
to
according
reasonably necessary
would be
to so com
specifications.”
(Emphasis supplied.)
plete
prima
the contract. The builder’s
fa-
cie case
be made out
would
contract
express pro
As to the effect of an
itself, coupled
proof
any
with
of
bona fide
remedy
in a contract
for a
in the
vision
performance
good
made in
faith thereun
breach,
case
the authorities are not
of
requirement
thereupon
der. The
would
de
harmony,
holding
some
the contractual
upon
evidence,
volve
the owner to offer
exclusive,
remedy
while others hold the
pleadings, showing
under
the amount of
contrary.
majority
Texas follows
expenditure reasonably necessary to move
parties
provide
to a
may
that
contract
their
the house so that
it
rest entirely
would
own remedies
contract
breach
upon his Lot 4.
provided
remedy
thus available does
not
public
contravene the law or violate
only portion
plead-
The
of the owner’s
policy.
523(1),
See 17A
Contracts §
C.J.S.
ings
might
which
be considered to have a
1011,
Form,
p.
“Nature,
Grounds
upon
bearing
that which would be his bur-
Action”,
e, “Remedy Stipulated by
Sub.
den reads as
follows: .“Defendants
<®->127,
Contract”;
Digest,
9
Contracts
Court,
alternative,
further show
“(Legality
Object
and of Considera
that
it is held that
in the event
Plaintiff
is
pow
limiting
tion)-Ousting jurisdiction or
lien,
alleged
entitled to foreclose the
that
court”;
ers of
Co. v.
Magnolia Provision
are entitled
an
Defendants
offset
Coleman,
(Tex.Comm.App.
cost of
quoted
any
place.
Lot
obviously
The
section
does
5 to
other
Neither is public
any
not contravene the
evidence in the record which might
law
violate
upon
provements” and the lot
which
upon the measure
considered
erected.
structure should have been
entire
parties contracted.
for which
holding
the conten-
The court’s
sustained
no rela-
would have
The rule discussed
tion.
thereof,
damages, and measure
to the
independ-
holding
in Crooker was: “The law
might
had
the owner
‘house,
upon
the lien
provides for
both
and because of
.
contract
of the
ently
improvements’,
upon
‘the
However,
building, or
of Lot 5.
invasion
builder’s
necessarily
lot or lots of land
connected
pleadings nor
alleged in his
neither
(Now
art.
therewith.’ Rev.St.
to re-
any right
by any proof
established
material re-
5452 which
unaltered
by reason
damages accruing to him
cover
expressly provided
contract
spect). thereof.
lien
as well
upon
improvements,
for the
therefore,
result,
is a case wherein
the lot or lots
right
re-
has established
the builder
same are to be
The lien
erected.
of the
the full amount
of the owner
cover
improvements is distinct from that on the
owing under
balance of indebtedness
lot, and,
may
it
while
to more
apply
contract,
for the
thereon and
for interest
apply
improve-
than lot
to all
will
attorney’s
provided by the notes.
fees
ments
upon the homestead.”
propriety
of the builder’s
In view
-
There
was no error
ques-
contract,
only
recovery under the
applied
foreclosure as
to the
*5
is whether
remaining
to be determined
part
which
a
resting
were
of the structure
by a
may be satisfied
the mechanic’s lien
upon the owner’s Lot 5.
It was likewise
only upon Lot 4 and the
foreclosure not
proper to
judgment
render
of foreclosure
thereon,
improvements
but also
erected
part
on such
of Lot
as was described in
improvements erect-
a foreclosure
parties’
improvements
contract and the
ed
Lot
a
of the owner’s
thereon.
“homestead”.
some of
agree with
we do
While
judgment
Law
court’s Conclusions
may
We have concluded that there
would,
the state of
in view
case
improve
also be
foreclosure
Appli-
record,
event.
be correct
ments
on Lot
As the
is re
located
case
properly found
to facts
cation of
law
held,
already
solved
what we have
it is
undisputed facts evidenced
on
“all fours” with the
of Crooker v.
case
Grant,
compel
judgment.
record
Tex.Civ.App.
judgment
way
should
credit and set-
complained
ter
of”
will look
the Court
off, have awarded the
owner
argu
“point”
and the statement
$3,500.00
damages
to which he was
question
ment thereunder to determine the
pleadings
stipula-
entitled under the
Wag
Fambrough
v.
reversible error.
tions.
ley,
(1943).
140 Tex.