Ferguson v. Ashbell & Simpson

53 Tex. 245 | Tex. | 1880

Bonner, Associate Justice.

Judgment below was rendered in favor of appellees, Ashbell & Simpson, against appellant, Ferguson, for the sum of $184.53, and enforcing the mechanic’s lien.

In the view we take of the case, it does not become material to determine any other question than this, the ruling upon which presents a fundamental error apparent of record, viz.: Was the bill of particulars, by the filing and notice of which the mechanic’s lien was attempted to be fixed and secured under the act of November 17, 1871 (Pasch. Dig., art. 7112), sufficiently certain and specific for this purpose?

The bill of particulars is as follows:

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It is well settled that to fix and secure a statutory mechanic’s lien the requisites of the statute must be substantially complied with in every essential particular. Noll v. Swineford, 6 Pa. St., 191; Lanman’s Appeal, 8 Pa. St., 476; Boykin v. Tinsley, 46 Tex., 592.

One of the most essential requirements of the statute is, that in verbal contracts a bill of particulars shall be filed in the proper office.

If the work was to be performed or the material to be furnished under a special written contract, with specifications and for a sum certain, and the same has been completed, then it is not necessary to set out the items of work performed and materials furnished, further than by the written contract itself. Phillips on Mech. Liens, § 352.

In verbal contracts, however, the terms and specifications of the contract and the amount and value of the work and materials furnished, are made ex parte, and should be so specific and certain as to advise the owner of the property, other lien creditors, if any, and all persons interested, of the particulars of the demand sought to be enforced, so that if they desire, they may be prepared to contest the same. Phillips on Mech. Liens, § 350; Noll v. Swineford, 6 Pa. St., 191; Lanman’s Appeal, 8 Pa. St., 476; Carson v. White, 6 Gill (Md.), 27.

In commenting upon the certainty required in such statement under the statute of Pennsylvania, the supreme court of that state say: “It has been felt that the extraordinary remedy afforded by our laws to mechanics and material men requires to be properly guarded, to prevent it from becoming a source of unjust annoyance and injury to those whose property is liable to be made the subject of its action. * * * As the law calls for nothing unreasonable at the hand of him who would fasten an encumbrance upon the property of his neighbor, no just ground of complaint is afforded by insisting upon a rigid adherence to its provisions. The information it exacts is, or ought to be, entirely within the power of the creditor to give, and an omission to put it on the record is, therefore, without excuse. Rehrer v. Zeigler, 3 Watts & Serg., 258; Thomas v. James, 7 Watts & Serg., 381; Witman v. Walker, 9 Watts & Serg., 186. Indeed, the great object of the statute in pointing out the characteristics of the statement to be filed, would, in the end, be utterly defeated, were we to indulge the laxity of practice which ignorance and carelessness conspire to introduce and perpetuate.” Noll v. Swineford, 6 Pa. St., 191.

Our statute does not prescribe the requisites of the bill of particulars, and although no precise rule can be laid down which would apply to every case, it may be safe to say that it should be reasonably certain as to the character and amount of materials furnished and the work performed, the dates and place when thus furnished and performed, and the value of the same.

In Bouvier’s dictionary, title Bill of Particulars, it is said to be an account of the items of the claim, and shows the manner in which they arose; and that it should be as full and specific as the nature of the case admits in respect to all matters as to which the adverse party ought to have information.

Perhaps as a practical general rule, no. better test can be applied than that usually made by the courts in deciding upon special demurrer, the insufficiency, as to certainty of time, place, kind, quantity and value, of a petition upon a quantum meruit, for materials furnished and work arid labor done and performed.

Tested by these rules, the bill of particulars under consideration was not sufficiently certain and specific to fix and secure the mechanic’s lien.

Although upon the trial, as in this case, the petition might be amended in this respect, yet this can be for the purpose of a personal judgment only, but not to fix and secure the lien, which depends upon a substantial compliance with the material requisites of the statute in the first instance.

There was error in so much of the judgment below as gave the mechanic’s lien, and to this extent it is reversed and reformed, and affirmed as to the personal judgment; the costs in and about this appeal incurred to be taxed against appellees.

Judgment reformed.

[Opinion delivered April 20, 1880.]