Sens v. Trentune

54 Tex. 218 | Tex. | 1881

Moore, Chief Justice.

The appellant, Sens, employed Ernest and William Hernze to construct for him a building on a lot in the city of Houston. These latter parties engaged John W. Trentune to furnish material and do the masonry work. And he employed appellee, House, to haul twenty-seven loads of brick to the building; which appellee alleges were used in its construction. For the work and labor of appellee, in and about this employment, which was of the value of §27.75, he brought suit in the district court of Harris county against all of said parties, claiming a personal judgment for his debt and for foreclosure of mechanic’s hen, etc.

We deem it unnecessary to notice the various interesting questions which are ruled upon by the court below in the progress of the case from its first inception to the final judgment. It has been fully settled by former decisions of this court, that there is no warrant or foundation for this judgment against appellant, on the facts alleged by appellee, either personally or for foreclosure of mechanic’s lien. Certainly there was no privity on the part of appellant to the contract between appellee and Trentune to warrant the personal judgment. And to entitle appellee, as laborer, to the benefit of the contractor’s lien, he must have fixed his lien, or at least have given notice of his claim in some way to the owner of the property, before he had paid the contractor in full for the building or improvement which the contractor was employed to construct. This is neither alleged or claimed in the petition to have been the fact. Shields v. Marrow, 51 Tex., 396; Horan v. Frank, 51 Tex., 401; Loonie v. Frank, 51 Tex., 406; Poole v. Sanford, 52 Tex., 621.

The judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered January 18, 1881.]