Public-domain · open source

88 Tex. 489

30 S.W 437

Warner Elevator Manufacturing Co. v. Maverick

Texas Supreme Court

Decided March 25, 1895

Texas Supreme Court · decided 1895-03-25

<p>1. Mechanic’s Lien, Constitution, and Statute.</p> <p>By the Constitution, article 16, section 57, mechanics, artisans, and material-men have a lien for the value of their labor done or materials furnished; and it is prescribed, that “the Legislature shall provide by law for the speedy and efficient enforcement of said hen.” In accordance therewith, article 3165 of the Revised Statutes was enacted........................ 492</p> <p>2. Same.</p> <p>The provisions of article 3165 of the Revised Statutes require, that “in order to fix and secure the lien herein provided for, it shall be the duty of every original contractor, within four months after the indebtedness shall have accrued, to file his contract in the office of the county clerk of the county in which such property is situated,” etc. This article should be liberally construed in furtherance of the purposes for which enacted.............. 493</p> <p>3. Same—Cause of Action.</p> <p>A building contract was made by written proposals mailed by the contractor to the owner, and his acceptance by telegraph to the contractor. The contractor, when the work was completed, filed a verified account, with items, etc., and with description of the lot upon which the house was built. In a suit by the contractor to enforce the lien, alleging these facts, with further allegation that plaintiff had demanded of defendant the proposals sent him and refusal, Held, that the petition showed right to recover on the lien----494</p> <p>ON REHEARING.</p> <p>4. Contract in Writing—Mechanic’s Lien.</p> <p>Proposals by contractor embodied in writing, sent to the owner and by him accepted by telegram, constitute a contract in writing as contemplated in article 3165, Revised Statutes, concerning mechanic’s lien................ 496</p> <p>5. Statute Construed—Proviso.</p> <p>That portion of said article 3165 which follows the word “provided ” has none of the characteristics of a technical proviso. It does not except anything from the body of the act, nor does it limit its operation with reference to any thing or person embraced therein. It is not to be treated as a proviso simply because so designated, but the language will be considered as if the word “provided" had not been used, if necessary to arrive at a proper interpretation of the law.........'...................................... 496</p> <p>6. Same—Same.</p> <p>The first part of the article 3165 applies to written contracts of which the claimant of the lien has possession and control; while the other part, called a proviso, relates to such written contracts as are not under the control of the person asserting the lien.......................................... 497</p> <p>7. His or Their Contract.</p> <p>The terms his or their contract mean that the contract is in his or their possession, and under his or their control. When the mechanic or contractor does not have possession or control of the contract in writing, the lien may be fixed by filing a verified account, with description, etc., as prescribed in articles 3166 and 3167............................................. 497</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1895-03-25

How this case has been cited

Cited by 45 later decisions — most recently February 2010 · most notably Atkinson v. Jackson Bros. (1923), Wood v. Barnes (1967)

2 federal appellate · 41 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1In the opinion delivered on this motion, filed June 3, 1895, it is said: "The District Court entered judgment in favor of Shafer Braden and the Pond Engineering Company, foreclosing their liens upon the property, of which no complaint is made in this court;" and we then proceeded to enter judgment, affirming the judgment of the District Court as to both Shafer Braden and the Pond Engineering Company. The writer overlooked the fact that the Court of Civil Appeals reversed the judgment of the District Court as to the Pond Engineering Company, from which no writ of error was taken to this court, and that matter was not before us.

¶2We now correct the judgment as entered upon that motion on the 3rd day of June, 1895, and enter the following judgment in lieu thereof: For the error of the District Court in sustaining the defendants' exceptions to the plaintiff's original and amended petition, and in sustaining the exceptions as to the said petition, as amended by the trial amendment, and the error of the Court of Civil Appeals in not sustaining the assignment of plaintiff in error based on that ruling, the judgments of the District Court and of the Court of Civil Appeals are reversed and the cause remanded as to the plaintiff in error, the Warner Elevator Manufacturing Company; and the said judgment of the Court of Civil Appeals is affirmed as to Shafer Braden and the Pond Engineering Company, with the direction, that the execution of the judgment of the District Court in favor of Shafer Braden be suspended until the determination of this case, so far as may be necessary to secure the rights of equal distribution of the proceeds of the property among the several parties entitled thereto.

¶3Delivered June 13, 1895.