Bell Oil & Refining Co. v. Price , 251 S.W. 559 ( 1922 )

BUCK, J.

This was an action for debt and foreclosure of a laborer’s lien by E. D. Price against the Bell Oil & Refining Company, hereinafter called company, a joint-stock association, and George Treadwell, A. O. Bell, and T. N. McNeill, as officers of the company, and as partners in the business. On a trial before the court T. N. McNeill was dismissed from the suit with his costs, and judgment rendered for plaintiff against the company and George Treadwell and A. O. Bell individually for $2,413.50 principal and $139.15 interest, and a foreclosure of a laborer’s lien on certain drilling appliances used on wells Nos. 2 and 3, on said lands. From this judgment Treadwell and Bell have appealed.

The seventh assignment is as follows;

“That the court erred in overruling defendants’ special exception to plaintiff's original petition as set forth in paragraph 4 of defendants’ first, amended original answer, wherein said defendants specially excepted to so much of plaintiff’s petition as alleged the fixing of a laborer’s lien and prayed for a foreclosure thereof for any sum alleged to be due the plaintiff for labor performed prior to a period of 30 days and one week immediately preceding the date upon which plaintiff filed in the office of the county clerk of Wichita county, Tex., his affidavit with the account of his work, referred to in said petition, for the reason that plaintiff was not, and is not, entitled under the law, to a laborer’s lien upon the property described in said petition for any labor - performed more than 30 days and one week prior to the filing of said affidavit and account. Wherefore said special exception should have been sustained.”

[1] Article 5636, Rev. Civil Statutes, provides:

“When labor is performed by the day or week, then the indebtedness shall be deemed to have accrued at the end of each week during which the labor is performed.”

Plaintiff testified that he went to work .for the company December 23, 1919; that he was hired by Messrs. McNeill and Webb; that they told him he was to get $10 a day. He testified as to what he was to get several times, but every time except once he said it was $10 a day. Then he testified:

“Mr. Webb and Mr. McNeill and I had a little talk standing by the jack by the west side of the derrick, and I asked them if they thought $300 a month, including $10 a day, was too much, and they said, ‘Ño; I think that is reasonable.’ ”

Then he alleged that he was to receive $10 a day, and the court so found, as shown by the findings of fact. In no event, in our judgment, would plaintiff be entitled to a foreclosure of a lien to secure his wages for longer than 30 days and one week prior to the time when the lien was attempted to be fixed. Chapter 2a, tit. 86, V. Supp. Tex. Civ. Stats. 1918, art. 5339d, provides:

“The liens herein created shall be fixed and secured and notice thereof shall be given and such liens shall attach and be, enforced in the same manner, and materialmen’s statement, or the lien of any laborer herein mentioned shall be filed and recorded within the same time, and in the same manner as provided for in chapter 2, title 86, entitled ‘Liens,’ of the Revised Statutes of 1911 of the state of Texas, relating to liens for mechanics, contractors, builders and. materialmen, as the same now exists or may hereafter be amended.”

Article 5622 of the Revised Statutes says:

“In order to fix and secure the lien herein provided for, it shall be the duty of * * * every journeyman, day-laborer or other person seeking to obtain the benefits of the provisions of this law, within thirty days after the indebtedness shall have accrued, to file his or their contract in the office of the county clerk, * * * provided, that, if such journeyman, day-laborer, or other persons have no written contract, it shall be sufficient for them to file an itemized account of their claim, supported by an affidavit, showing that the account is just and correct”

McClellan v. Haley (Tex. Civ. App.) 237 S. W. 627, holds that no lien exists if the laborer fails to fix his lien within 30 days after the accrual of the debt. While a writ of error was granted by the Supreme Court in that case, we do not believe that this holding will be disturbed. Hence the seventh assignment is sustained.

[2] The ninth assignment is directed to that part of the judgment awarding a judgment against George Treadwell and A. 0. Bell, individually. It is urged that there is no evidence in the record showing or tending to show that either of them employed plaintiff or even bound themselves, directly or indirectly, to pay him for any worK done. The only evidence in the record that either of these defendants was a stockholder or officer in the Bell Oil & Refining Company is contained in the articles of association of the company. These articles are not in the statement of facts signed by the trial judge, but are placed after the certificate of the judge. The judge adds to the certificate the following memorandum:

“I further certify that the parties to said cause having stated to me that they were and are unable to agree upon a statement of facts therein, and having submitted their respective statements to me, I have, from my own knowledge, with the aid of said statements, made out the foregoing statement, and it is ordered that the same shall constitute a part of the record in said cause, with the following explanation: There were two cases tried before the court without a jury on the same day; one following immediately after the other. In the first case the articles of association included in the foregoing statement of facts were introduced in evidence and considered in evidence in the trial of that case. The articles' of association were not introduced in evidence in the trial of this case, and I have no independent recollection about the matter as to whether I considered them in evidence in rendering a judgment in this case. It is quite evident, however, from the judgment rendered herein that I did consider the articles of association in evidence.”

If these articles of association were not introduced in evidence in this case, they could not be considered by the trial court, because they were introduced in evidence in another case tried by the court. Therefore the ninth' assignment is sustained.

For the reasons stated the judgment or the trial court is reversed, and the cause remanded, in so far as the. judgment against Treadwell and Bell individually is concerned. No appeal being taken trom the judgment against the Bell Oil & Refining Company, that part of the judgment is left undisturbed.