217 S.W. 372 | Tex. | 1919
This case calls for a determination of the legal effect of notice to an owner, under article 5623, Rev. Stats., of a claim for material furnished a sub-contractor, given when the owner was indebted to the contractor in an amount in excess of the claim, and followed by the filing and recording of proper account within ninety days from the date of furnishing the last item of material, where the contractor, after the material was furnished and before notice was served on the owner, had settled in full with the sub-contractor.
The judgments of the District Court and of the Court of Civil Appeals give to such a notice the effect of requiring the owner to withhold for the materialman the amount of his claim, and of establishing a lien, for such amount, against the owner's property.
The contractor and owner in this case attack such judgments upon the ground that it is essential to compliance with the statutes for the enforcement of a materialman's lien that notice be given of each item of material as it is furnished, and that where there has been delay in giving notice until the contractor has paid off the sub-contractor, the materialman should be denied any remedy against the owner or his property: because such delay would otherwise operate to the contractor's injury.
We do not believe that this attack on these judgments can be sustained under the settled or right construction of the statutes.
In Johnson v. Amarillo Improvement Co.,
In answering certified questions, it was declared in Padgitt v. Dallas Brick Constr. Co.,
The statutes embody the just conception that the rights of the contractor are inferior to those of the materialman. The duty to furnish and pay for the material is primarily imposed on the contractor by the ordinary building contract, such as that here involved. The contractor selects the sub-contractor. If loss must fail on materialman, owner, or contractor, by reason of the default of one chosen by the contractor to perform his obligation, and of one whose acts are, or ought to be, directly under the contractor's supervision, surely the loss ought to fall on the contractor. Such is the just operation of our statutes, as heretofore construed, and we do not think that the contractor has any just ground to complain of the relief awarded the materialman under the facts of this case. By withholding from the contractor the amount due the materialman, as authorized by the statute, the owner sustains no loss.
To make the right of the materialman depend on the state of the accounts between contractor and sub-contractor, at the date of service of written notice on the owner, would be to deprive him of substantial and certain benefits which the statutes are designed to provide.
There was no error in the personal judgments against the owner and contractor.
As said in Fullenwider v. Longmoor,
In re-affirming the rule stated, it was said in the opinion of the Court by Judge Brown in Lonergan v. San Antonio Trust Co.,
A garnishee cannot pay over the garnished fund to the creditor originally entitled thereto, without becoming personally liable to the garnishing creditor, and, we are but enforcing the full statutory obligation of the owner when we hold him personally responsible for monies to which the materialman and not the contractor was entitled, but which the owner has withheld from the materialman and paid the contractor. The statutes, when complied with, have substantially the same effect as a transfer of the obligation of the owner by the contractor to the materialman to the extent required to pay the account for the material. *161
Because the money paid over to the contractor and converted by him to his own use and benefit, was money lawfully impounded by the materialman, and to which he had the superior claim, we think it clear that the contractor also became liable therefor to the materialman.
It follows that the judgment of the Court of Civil Appeals, which gave the materialman a personal judgment against the owner and contractor, with foreclosure of the statutory lien, should be affirmed, and it is so ordered.
Affirmed.