Burt v. Parker County , 77 Tex. 338 ( 1890 )

COLLARD, Judge.

—It is alleged by plaintiff and other parties seeking a recovery against Parker County and .the First National Bank of Weatherford that the court house was completed and accepted, and the contract by Milliken & Co. with the county was in all respects carried out on the 29th day of June, 1886, and that on'that day the county paid the bank all the balance due Milliken & Co. on the contract. It also appears from allegations made that none of the subcontractors with Milliken & Co. gave notices to the county or took any steps to fix their alleged liens on the house or establish their claims against the county until after the amount due Milliken & Co. had been paid and the contract fully satisfied. It is alleged, however, that the subcontractors filed their claims in the office of the county clerk and had them duly recorded within thirty days after the same accrued, having, given proper notices to the county ten days previous to such filing and recording, and it is therefore contended that they used all the diligence that was necessary or that could have been used to fix the liens and the liability of the county. Sayles’ Civ. Stats. (Acts 1885), arts. 3164, 3168, 3175, 3176. A lien was evidently intended to be given by the law to subcontractors, material men, and laborers furnishing material or doing work on a building upon compliance with the statute, but it is equally evident that the liability of the owner was limited to the amount of the debt due the original contractor in the hands of the owner at the time the proper notice is given. The owner is required to retain in his hands the amount claimed or found to be due. It is not the purpose of the law to require the owner to pay for his improvement or building twice, or too pay or become liable for more than he originally contracted to pay. This doctrine is fully established and statutes discussed in two cases decided by the Supreme Court of this State, and the liability limited as follows: “The owners of the property are not liable to subcontractors for any amount paid before being served with notice.” Dudley v. Jones, ante, 69; Fullenwider v. Longmoor, 73 Texas, 481.

The appellants had no valid claim against the county of Parker or lien on the court house at the time the money was paid to the bank, and none such could be created by the proceedings instituted by them after the money due on the contract had been fully paid. The county paid the balance due Milliken & Co. to the bank, a creditor without lien; but such payment before appellants had given the notice required, and before they had acquired any rights in the fund, would not render either the counter or the bank responsible for appellants’ claims or any part of them. There was no question of collusion between the bank and the county to defraud the subcontractors, and no opinion is expressed upon that subject.

It is alleged, however, that the bank obtained the money from the county by false and fraudulent representations made to the county officials, that it had assumed to pay appellants’ debts, that the money demanded was to reimburse it for paying the claims, and that it was collecting said money in order to pay said claims. The bank was not a lien creditor, it is true, but it did not have to be to collect its debt before other debts were secured by liens. The county was n'ot at the time of the payment to the bank liable in any form to look after appellants’ claims or protect them. In such case the representations of the bank, as alleged, was no fraud upon appellants; no right of theirs was interfered with. Had Milliken made such representations there would have been no fraud, and the bank being itself a creditor, seeking payments of its debt, had equal if not superior right to Milliken.

We conclude there was no error in sustaining the exceptions to the petitions and cross-suits as against the county and the bank. The court gave judgment for plaintiff and cross-claimants against J. H. Milliken.

The judgment of the court should be affirmed.

Affirmed.

Adopted May 20, 1890.