279 S.W. 921 | Tex. App. | 1926
Lead Opinion
This suit was filed by appellees in form of trespass to try title, also claiming title under statute of limitation of 3, 5, and 10 years.
Appellant (defendant below) answered by general denial, plea of not guilty, and specially pleaded:
"That whatever interest, if any, and whatever title plaintiffs might own in said land, was subject and subordinate to a valid and subsisting debt of record in the sum of $3,214, secured by a valid and subsisting lien in favor of the defendant (appellant) against the Breckenridge City Club, plaintiffs' grantor and the common source of title in this suit, which said judgment for said amount establishing and foreclosing said lien was rendered by the Court of Civil Appeals for the Second Supreme Judicial District of Texas, on the 28th day of April, 1923, and certified to the trial court for observance, and a copy thereof is now on file in cause No. 2632B, wherein said judgment was rendered."
The report in which the judgment above pleaded was rendered will be found in
After the rendition of said judgment, the appellees purchased said property at a trustee's sale on default of a note dated August 11, 1920, and secured by a deed of trust on the above property, but which deed of trust was not filed for record until February 26, 1921. As shown in the report of said case, above referred to, the account of the appellant materialman for lumber and material furnished was duly filed for record on the 11th day of April, A.D. 1921.
The contract under which the material and lumber was furnished was made between one V. E. Steen, who was acting for the promoters of the Breckenridge City Club, and the appellant, about the 1st day of September A.D. 1920, by which appellant agreed to furnish material as required for the improvements contemplated, and was to be paid for same as said material was delivered, and upon the presentation of the bills to H. A. Leaverton, O. K.'d by at least three of the parties interested in the improvements. That during the month of September and a portion of October, 1920, appellant furnished material for improving said lots, which material was received and used for said improvements. The bills, five or six in number, presented to H. A. Leaverton, properly O. K.'d, were paid in conformity with said contract; and on various days from September 5, 1920, to February 4, 1921, appellant furnished and delivered said material in improving said lots under said contract in the amounts and at the time as shown in said itemized statement attached to appellant's answer; and the said material was delivered and an itemized statement of same was furnished to the Breckenridge City Club, properly O. K.'d for payment, and payment was requested and refused. The itemized statement referred to shows that no payments were made on this account until January 1, 1921.
This, together with the statements in the opinion in
The mechanic's lien statute requires the materialman to file his lien of record within 4 months from the date the indebtedness accrued. Revised Statute 1911, art. 5622. Revised Statute, art. 5636, provides when the indebtedness shall have accrued as follows:
"When labor is performed by the day or week, then the indebtedness shall be deemed to have accrued at the end of each week during which labor is performed. When material is furnished, the indebtedness shall be deemed to have accrued at the date of the last delivery of such material, unless there is an agreement to pay for such material at a specified time."
Our construction of the statute is that, where the material is to be furnished from time to time as in the present case, and it is impossible for the parties to know in advance what amount would be needed, and the amount and the times when the material would be required is uncertain, then the amount of indebtedness could not be ascertained until the account is closed by a final delivery and that it was the purpose of the Legislature to authorize a materialman in such cases to file his lien within 4 months from the date of the delivery of the last material. We think this view is sustained by the following authorities: Matthews v. Wagenhaeuser Brewing Ass'n et al.,
It is earnestly insisted by appellees that the statute quoted under the facts in this case requires the filing of the lien within 4 months from the delivery of each item, that the agreement that the material should be paid for when accounts are O. K.'d and presented makes a contract for the payment of each item at a specified time, and that the account for each item must be filed within 4 months from the time each bill was O. K.'d and presented for payment. We do not believe that this statute can be properly given such instruction. In the case of Matthews v. Wagenhaeuser Brewing Association, supra, the agreement was very similar to the one here under consideration, except that there the agreement was to pay the whole bill on January 1, 1886, and the last delivery of material occurred on December 15th prior thereto, and the court there held that the lien should be filed within 4 months from the date of the delivery of material, and what was there said in disposing of that case we think makes the decision there made applicable to the facts of the case at bar.
It is our view that, if the appellant is entitled to recovery for the last item, he is entitled to the recovery for the whole. The fact that the items included in the last delivery were small would not affect the question, if they were delivered under the original contract and part of the material used in the construction of the building.
For the reasons indicated, judgment of the trial court is reversed, and judgment here rendered in favor of appellant for a foreclosure of his materialman's lien for the amount of his debt as decreed by the Court of Civil appeals in the case of Breckenridge City Club v. H. H. Hardin,
We are of the opinion that article 5636 is applicable to the facts in this case, and that the sole issue in this case depends upon the construction of this statute, and the part to be applied to the furnishing of material reads as follows:
"When material is furnished, the indebtedness shall be deemed to have accrued at the date of the last delivery of such material, unless there is an agreement to pay for such material at a specified time."
The Legislature could not have had in mind cash payment at the time of delivery, for in that case there would be no need of legislative relief, as the transaction would be complete upon delivery and payment.
The term "specified time" must be interpreted to mean some time to be fixed for the payment of the entire indebtedness, which could not be done until after full delivery of all material; for otherwise there would be no way in which the amount to become due for the full bill of material furnished could be ascertained.
Motion for rehearing is overruled.
Dissenting Opinion
See 281 S.W. 656. *923