First Baptist Church of Tyler v. Carlton Lumber Co. ( 1915 )

⁸²²⁴ Writ of error pending in Supreme Court. The appellants each requested a peremptory instruction to the jury in their favor, which was refused by the court, and this action is here assigned as error. The appellee may only recover, if at all, it is thought, upon the ground that it has a mechanic's lien. In this respect it appears undisputed that the McGavick Construction Company, in point of fact, abandoned the work and breached the contract at a time when the building was incomplete, and the church committee, accepting the breach, and acting independently of the contract, made a distinct contract reletting the work to the appellant insurance company for a stated and fixed price. At the time of the abandonment of the contract the original contractor had been paid in full, and appellee had not fixed a mechanic's lien until after the contract had been relet to appellant insurance company. In these facts it is believed that no recovery could be had or statutory lien enforced against the church or the subsequent contractor. Article 5623, R.S.; Berry v. McAdams, 93 Tex. 431, 55 S.W. 1112: Medley v. Radiator Co., 27 Tex. Civ. App. 384, 66 S.W. 86; Riter v. Mfg. Co.,19 Tex. Civ. App. 516, 48 S.W. 758.

And, unless it can be said, as contended by appellee, that it has a lien under the terms of the Constitution, independent of the statute, the peremptory instruction should have been given. Under the facts appellee was not itself the contractor with the owner of the building, but merely furnished to the contractor, under a contract separately and distinctly with the contractor so to do, the lumber and material for which the lien is claimed. The owner was no party to the contract of appellee with such contractor. The pertinent provision of the Constitution reads:

"Mechanics, artisans and materialmen, of every class, shall have a lien upon the buildings and articles made or repaired by them, for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens." Article 16, § 37.

It is concluded that the terms of the constitutional provision may fix and establish a lien on the property in favor of the principal contractor himself for the value of the material put in the building "by him," but does not extend and give to other persons between whom and the owner there is no privity of contract a lien upon the property for the value of the material furnished by them to the principal contractor. Shields v. Morrow, 51 Tex. 393; Horan v. Frank, 51 Tex. 401.

The judgment is reversed, and here rendered in favor of appellants, with costs of appeal and of the district court. The judgment against the construction company, not being appealed from, will remain undisturbed.