Tremont Hotel Co. v. Rosamond, Milam & Co. , 2 Posey 682 ( 1879 )

Opinion.— The above is a very full statement of the case. The testimony is embodied in the opinion. The assignments of error are sixteen, relating chiefly to the judge’s charges, and the sufficiency of the. testimony, presenting questions whether a lien could he created on a hole in the ground and brick put in it; whether such a lien would be superior to the previous liens fixed upon the land.

This suit was brought by Rosamond & Milam Bros, against theJTremont Hotel Company and Marx & Kempner, for the recovery of a debt due by the Hotel' Company to them for brick furnished for building a cistern on their property, and to enforce a.“mechanic’s” lien thereon, Marx & Kempner being made parties as the present owners of the property. The mechanic’s lien law of 1876 declares that any firm who shall furnish material to erect any improvement shall have a lien thereon, and on the land necessarily connected therewith, to secure payment for the material.

“ If the contract, order or agreement be verbal (in order to secure thé lien), a bill of particulars of the material must be made under oath, one to be delivered^to the county clerk and recorded, and a duplicate to be furnished to the party owing the debt.”

To entitle the plaintiffs to a recovery it was necessary to establish the fact that the Trémont Hotel Company was the party owing the debt. The proof in the case shows that the brick were sold to Burnett & Kilpatrick. The testimony of Milam, one of the plaintiffs, is that the brick were furnished to Burnett & Kilpatrick in September, 1876, who were the ostensible owners of the Tremont Hotel; that he made out a copy of the account and delivered it to J. H. Burnett, who said it was correct, and he promised to pay it as soon as collected from the state penitentiary. He did not know who were the actual owners of the property when the brick were sold. What he meant by “ ostensible owners” was, that Burnett & Kilpatrick were in charge of and running the hotel. He did not contract with Burnett as president of the Hotel Company; did not know who constituted the company. When he first presented the bill after it became due, it was made out against Burnett & Kilpatrick. He had then been selling brick to Burnett & Kilpatrick for use on other property. When he made' out the bill to fix the lien, he made this bill out against the Hotel Company, under the advice of a lawyer.

Burns, a witness for the plaintiff, proved that the brick were brought into the cistern; that he counted them for Burnett & Kilpatrick. Look, for the plaintiff, also testified that he built the cistern for Burnett & Kilpatrick, and they paid him for the work. Kilpatrick, for the defense, testified that he was a member of the firm of Burnett & Kilpatrick ; that that firm engaged in building the Tremont Hotel, and were bound to construct the cistern; that his firm bought the brick from plaintiffs, and contracted to pay for them, and intended to do so; that Milam dealt with them for the brick, and had sold them other brick for the hotel, for which they had paid them. When the brick were bought, J. H. Burnett was president of the Tremont Hotel Company for the year 1877. The firm of Burnett & Kilpatrick had agreed with the Hotel Company to furnish the cistern at their own expense, as they had previously contracted to build it.

Burnett & Kilpatrick were the owners of the hotel property in April, 1877. . In April, 1877, they conveyed the property to the Tremont Hotel Company. It was then subject to a trust deed to secure a debt to Ball, Hutchings & Co., made by Burnett & Kilpatrick in August, 1876.

The Hotel Company executed a trust deed upon it in May, 1877, to secure a debt to the Texas Banking & Insurance Co. Under these trust deeds the property was sold in. May, 1878, and purchased by Marx & Kempner.

It is very clear from this testimony (and we have given all which bears upon the subject) that the plaintiffs did not establish their demand against the Tremont Hotel Company. The Tremont Hotel Company was not the party owing the debt. And unless the duplicate copy of the account for material bé delivered to “the party owing the debt,” no lien upon the property is fixed or secured under the law. The delivery of the copy of the account to J. H. Burnett as president of the Hotel Company in April, 1878, did not make the Hotel Company liable for Burnett & Kilpatrick’s debt, or fix any lien upon the property.

It is suggested by the plaintiffs that the Hotel Company became liable for the debt because Burnett & Kilpatrick bought the property from Runga, Sealy & Rosen burg, and contracted to build the cistern, and conveyed the property to the Tremont Hotel Company, and that Burnett & Kilpatrick were the Hotel Company. There is no proof of this fact (if it ivere material). It is said, too, that Mr. Willis told Milam his debt ivas perfectly safe to his firm on account of the statutory lien. But this was but his expression of opinion, and not as president of the Insurance Company. And so it is said that Burnett, when president of the company, acknoAvledged the debt, but he did not so acknowledge it as the debt of the company, nor could his acknowledgment so made bind the company to pajr Burnett & Kilpatrick’s debt.

There is not a scintilla of proof in the transcript to show that the Hotel Company, in any Avay, became bound to pay this debt of Burnett & Kilpatrick’s.

It was manifest error, therefore, for the judge to charge the jury that: “It would make no difference Avhether the company made the contract or not by authorized agents if the company knew at the time the bricks Avere bought that they were purchased for the use of the cistern, and were used by the company, and by subsequent action ratified the contract and recognized it as a Adalid obligation thereon,” in that the same was not justified by the evidence. Keither their knowledge of the purchase nor of their use in the cistern, nor the use of the cistern, could make them liable, and there is no proof of any ratification or recognition of the obligation as binding upon them. And for this cause the judgment should be reversed.

Whether a lien could be created upon the brick wrought into a cistern, built of brick in the ground, a permanent fixture if anything can be considered such, need not be L.itermined, but the question arises: If they can be removed , all under the state of case presented here, forming but a part of the whole work, we could see no objection to the enforcement of the lien upon them because of the liens or conveyances of the property previous to the time when they were-so wrought in. The conveyance of real property is a conveyance of it from the center to the zenith; but it is not perceived that "it would be a violation of any vested right acquired by Ball, Hutchings & Co., or the Texas Banking & Insurance Co., by their conveyances, that the builder of improvements upon the property subsequently should have a lien upon those improvements for the value of the material used in making them.

It does not lessen the security as it was conveyed to them, and would seem not objectionable if the material or the improvement can be removed without injury to the estate as originally conveyed.

It is not necessary to consider the other errors assigned. What we have said is applicable more or less to all of them, and is decisive of the case,

B.EVERSED AND BEMANDED,