OPINION
MASSEY, Chief Justice.
The appeal is by defendant James H. Doyle and his daughter from a judgment in behalf of Second Master-Bilt Homes, Inc., for debt and foreclosure of a mechanic’s lien securing the payment of same pursuant to said plaintiff’s erection of a residential structure for defendant. The trial was before the court without a jury.
Affirmed.
[228]*228Vernon’s Ann.Tex.Civ.St., Title 90, “Liens”, Chapter Two, “Mechanics, Contractors and Material Men”, Art. 5452, “Lien prescribed” (a statute enacted by the Legislature according to the provisions and to accomplish the purposes which were prescribed in Texas’ Constitution, Art. 16, Sec. 37, Vernon’s Ann.St.), provides in part that one who may labor or furnish material, etc. to erect or repair any house or building under or by virtue of a contract with the owner (one who becomes the owner thereof before or after the completion of the work, materials, etc.) may have a lien upon such house or building and also upon the lot or lots necessarily connected therewith to secure payment therefor-upon complying with the provisions of the aforementioned Chapter Two. The statute is a remedial one in derogation of the general rule of the common law that a house erected upon land becomes a part thereof. See William Cameron & Co. v. Trueheart, 165 S.W. 58 (Austin Civ.App., 1914, no writ hist.) and cases cited.
There is no contention that there was any default of the plaintiff builder in complying with the provisions of such Chapter Two.
The defendant, who was the owner of certain lots numbered 4, 5, 6, and 7, entered into a contract with the plaintiff, a building contractor, to erect a semi-finished residential building on Lot 4. A survey was made by or for the builder, the purport of which was to stake-out Lot 4 preliminary to institution of actual construction. The stakes were mistakenly placed as though the side boundaries thereof were at right-angle to the road running along in front of Lots 4, 5, 6, and 7. Actually the side boundaries of the lots angled so that they ended at the road in an approximate 45 degree angle. The owner observed the fact that the stakes were misplaced. He notified the builder, who had Lot 4 re-surveyed, with stakes properly placed.
Through negligence on the part of the builder and its crew of workmen who were to build the structure on Lot 4 someone obviously picked up the survey papers first prepared, erroneously as aforedescribed, and used them in locating site of the building and in completing what was contemplated to be the builder’s performance under the contract. A result which occurred was that the structure, upon delivery to and acceptance by the owner, was located about one-half on Lot 4 and about one-half on Lot 5.
Though both lots belonged to the same owner, defendant herein, Lot 5 was one of two lots comprising his homestead. As heretofore noted Lot 5 was not a lot necessarily connected with or necessary to be involved or used by the builder in its accomplishment of the consideration owing by it under the contract. Lot 5 was a part of the owner’s homestead, and as such no lien could attach unless the parties specifically contracted in writing with respect to improvements to be placed thereon. That no lien could have attached to Lot 5 is conceded by all parties.
Despite the fact that the owner lived next door during the course of construction he (under stipulation made) was not consciously aware of the fact that it was misplaced in that in part it was located on his homestead. A finding of fact made, however, was to the effect that he should have known such fact. He subsequently executed an instrument acknowledging completion by the builder according to contract and entered into possession.
Prescribed to be the debt of the owner upon builder’s complete performance was the principal sum of $8,422.50, together with interest at the rate of 8% per annum, payable monthly in installments of $77.50.
Following completion and acceptance of the building the owner made the prescribed monthly payments on principal and interest for approximately two and one-half years. The principal balance shown by an accounting, and based upon the original principal sum owing at $8,422.50, with credits made to principal and interest as payments [229]*229were made, indicated a balance of $7,425.-39. It is, of course, obvious that if the owner sustained damages by reason of the builder’s breach of contract in the mis-lo-cation of the structure they would have been damages to which the owner was entitled as of the date of the builder’s performance was purportedly complete.
In their contract the parties provided, in part, as follows:
“It is further distinctly understood and agreed that should the improvements, herein mentioned to be erected, fail for any reason to be completed, or fail to be completed according to the contract, * * * that Party of the Second Part * * * shall have a valid and subsisting lien for said contract price, less such amount as would be reasonably necessary to complete said improvements according to plans and specifications.” (Emphasis supplied.)
As to the effect of an express provision in a contract for a remedy in the case of a breach, the authorities are not in harmony, some holding the contractual remedy exclusive, while others hold the contrary. Texas follows the majority rule that parties to a contract may provide their own remedies for a breach of the contract provided the remedy thus available does not contravene the law or violate public policy. See 17A C.J.S. Contracts § 523(1), p. 1011, “Nature, Form, and Grounds of Action”, Sub. e, “Remedy Stipulated by Contract”; 9 Tex. Digest, Contracts <®->127, “(Legality of Object and of Consideration)-Ousting jurisdiction or limiting powers of court”; Magnolia Provision Co. v. Coleman, 3 S.W.2d 412 (Tex.Comm.App.1928); Municipal Gas Co. v. Lone Star Gas Co., 259 S.W. 684 (Dallas Civ.App., 1924, affirmed 117 Tex. 331, at 3 S.W.2d 790, 58 A.L.R. 797) in which it was stated further that where parties have legally contracted in reference to a mutual remedy for breach of contract, such remedy becomes a vested property right.
The quoted section obviously does not contravene the law or violate public policy. It seems clear that the parties have so contracted that in the event of the breach by the builder resulting from its failure to complete the structure according to the contract the amount of the indebtedness owing by owner to builder would be the contractual price computable by a deduction from the amount of $8,422.50 the amount established as “such amount as would be reasonably necessary to complete said improvements according to plans and specifications.”
Where there has been a resort to litigation as a result of failure or inability on the part of the parties to resolve the proper amount to be applied as a deduction it would seem that the burden would be cast upon the owner to establish by evidence, under pleadings, such amount as would be reasonably necessary to so complete the contract. The builder’s prima fa-cie case would be made out by the contract itself, coupled with proof of any bona fide performance made in good faith thereunder.
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OPINION
MASSEY, Chief Justice.
The appeal is by defendant James H. Doyle and his daughter from a judgment in behalf of Second Master-Bilt Homes, Inc., for debt and foreclosure of a mechanic’s lien securing the payment of same pursuant to said plaintiff’s erection of a residential structure for defendant. The trial was before the court without a jury.
Affirmed.
[228]*228Vernon’s Ann.Tex.Civ.St., Title 90, “Liens”, Chapter Two, “Mechanics, Contractors and Material Men”, Art. 5452, “Lien prescribed” (a statute enacted by the Legislature according to the provisions and to accomplish the purposes which were prescribed in Texas’ Constitution, Art. 16, Sec. 37, Vernon’s Ann.St.), provides in part that one who may labor or furnish material, etc. to erect or repair any house or building under or by virtue of a contract with the owner (one who becomes the owner thereof before or after the completion of the work, materials, etc.) may have a lien upon such house or building and also upon the lot or lots necessarily connected therewith to secure payment therefor-upon complying with the provisions of the aforementioned Chapter Two. The statute is a remedial one in derogation of the general rule of the common law that a house erected upon land becomes a part thereof. See William Cameron & Co. v. Trueheart, 165 S.W. 58 (Austin Civ.App., 1914, no writ hist.) and cases cited.
There is no contention that there was any default of the plaintiff builder in complying with the provisions of such Chapter Two.
The defendant, who was the owner of certain lots numbered 4, 5, 6, and 7, entered into a contract with the plaintiff, a building contractor, to erect a semi-finished residential building on Lot 4. A survey was made by or for the builder, the purport of which was to stake-out Lot 4 preliminary to institution of actual construction. The stakes were mistakenly placed as though the side boundaries thereof were at right-angle to the road running along in front of Lots 4, 5, 6, and 7. Actually the side boundaries of the lots angled so that they ended at the road in an approximate 45 degree angle. The owner observed the fact that the stakes were misplaced. He notified the builder, who had Lot 4 re-surveyed, with stakes properly placed.
Through negligence on the part of the builder and its crew of workmen who were to build the structure on Lot 4 someone obviously picked up the survey papers first prepared, erroneously as aforedescribed, and used them in locating site of the building and in completing what was contemplated to be the builder’s performance under the contract. A result which occurred was that the structure, upon delivery to and acceptance by the owner, was located about one-half on Lot 4 and about one-half on Lot 5.
Though both lots belonged to the same owner, defendant herein, Lot 5 was one of two lots comprising his homestead. As heretofore noted Lot 5 was not a lot necessarily connected with or necessary to be involved or used by the builder in its accomplishment of the consideration owing by it under the contract. Lot 5 was a part of the owner’s homestead, and as such no lien could attach unless the parties specifically contracted in writing with respect to improvements to be placed thereon. That no lien could have attached to Lot 5 is conceded by all parties.
Despite the fact that the owner lived next door during the course of construction he (under stipulation made) was not consciously aware of the fact that it was misplaced in that in part it was located on his homestead. A finding of fact made, however, was to the effect that he should have known such fact. He subsequently executed an instrument acknowledging completion by the builder according to contract and entered into possession.
Prescribed to be the debt of the owner upon builder’s complete performance was the principal sum of $8,422.50, together with interest at the rate of 8% per annum, payable monthly in installments of $77.50.
Following completion and acceptance of the building the owner made the prescribed monthly payments on principal and interest for approximately two and one-half years. The principal balance shown by an accounting, and based upon the original principal sum owing at $8,422.50, with credits made to principal and interest as payments [229]*229were made, indicated a balance of $7,425.-39. It is, of course, obvious that if the owner sustained damages by reason of the builder’s breach of contract in the mis-lo-cation of the structure they would have been damages to which the owner was entitled as of the date of the builder’s performance was purportedly complete.
In their contract the parties provided, in part, as follows:
“It is further distinctly understood and agreed that should the improvements, herein mentioned to be erected, fail for any reason to be completed, or fail to be completed according to the contract, * * * that Party of the Second Part * * * shall have a valid and subsisting lien for said contract price, less such amount as would be reasonably necessary to complete said improvements according to plans and specifications.” (Emphasis supplied.)
As to the effect of an express provision in a contract for a remedy in the case of a breach, the authorities are not in harmony, some holding the contractual remedy exclusive, while others hold the contrary. Texas follows the majority rule that parties to a contract may provide their own remedies for a breach of the contract provided the remedy thus available does not contravene the law or violate public policy. See 17A C.J.S. Contracts § 523(1), p. 1011, “Nature, Form, and Grounds of Action”, Sub. e, “Remedy Stipulated by Contract”; 9 Tex. Digest, Contracts <®->127, “(Legality of Object and of Consideration)-Ousting jurisdiction or limiting powers of court”; Magnolia Provision Co. v. Coleman, 3 S.W.2d 412 (Tex.Comm.App.1928); Municipal Gas Co. v. Lone Star Gas Co., 259 S.W. 684 (Dallas Civ.App., 1924, affirmed 117 Tex. 331, at 3 S.W.2d 790, 58 A.L.R. 797) in which it was stated further that where parties have legally contracted in reference to a mutual remedy for breach of contract, such remedy becomes a vested property right.
The quoted section obviously does not contravene the law or violate public policy. It seems clear that the parties have so contracted that in the event of the breach by the builder resulting from its failure to complete the structure according to the contract the amount of the indebtedness owing by owner to builder would be the contractual price computable by a deduction from the amount of $8,422.50 the amount established as “such amount as would be reasonably necessary to complete said improvements according to plans and specifications.”
Where there has been a resort to litigation as a result of failure or inability on the part of the parties to resolve the proper amount to be applied as a deduction it would seem that the burden would be cast upon the owner to establish by evidence, under pleadings, such amount as would be reasonably necessary to so complete the contract. The builder’s prima fa-cie case would be made out by the contract itself, coupled with proof of any bona fide performance made in good faith thereunder. The requirement would thereupon devolve upon the owner to offer evidence, under pleadings, showing the amount of expenditure reasonably necessary to move the house so that it would rest entirely upon his Lot 4.
The only portion of the owner’s pleadings which might be considered to have a bearing upon that which would be his burden reads as follows: .“Defendants would further show the Court, in the alternative, that in the event it is held that Plaintiff is entitled to foreclose the alleged lien, that Defendants are entitled to an offset for the cost of removing the improvements from the property described in the May 30, 1961, contract, if same can be done without destruction of the improvements * * * which costs the Defendants allege to be $6,800.00.”
The full and complete record is devoid of any evidence whatever concerning the cost of removing the improvements from Lot 5 to any other place. Neither is there any evidence in the record which might be [230]*230considered as proof upon the measure of damages for which the parties contracted.
The rule discussed would have no relation to the damages, and measure thereof, which the owner might have had independ- . ently of the contract and because of the builder’s invasion of Lot 5. However, the owner neither alleged in his pleadings nor established by any proof any right to recover damages accruing to him by reason thereof.
The result, therefore, is a case wherein the builder has established the right to recover of the owner the full amount of the balance of indebtedness owing under the contract, for interest thereon and for the attorney’s fees provided by the notes.
In view of the propriety of the builder’s recovery under the contract, the only question remaining to be determined is whether the mechanic’s lien may be satisfied by a foreclosure not only upon Lot 4 and the improvements erected thereon, but also by a foreclosure upon the improvements erected upon Lot 5, a part of the owner’s “homestead”.
We have concluded that there may also be a foreclosure upon the improvements located on Lot 5. As the case is resolved by what we have already held, it is on “all fours” with the case of Crooker v. Grant, 5 Tex.Civ.App. 182, 24 S.W. 689 (CCA of Tex., 1893, no writ hist.). We have had recourse to Sheppard’s Southwestern Reporter Citations. Therefrom it appears that the material holding of the case has been followed and never been overruled or distinguished. In Crooker the situation was that a house built for another was erroneously misplaced in that it rested in part upon a lot belonging to him adjacent to his homestead lot, and in part upon his homestead. The contract under which the house was erected, and because of which the lien was given, called for entire construction on the adjacent lot. On appeal it was contended that the lien extended to the “improvements” resting upon the “homestead” lot as well as to the “improvements” and the lot upon which the entire structure should have been erected. The court’s holding sustained the contention.
The holding in Crooker was: “The law provides for the lien both upon the ‘house, building, or improvements’, and upon ‘the lot or lots of land necessarily connected therewith.’ Rev.St. art. 3164. (Now Art. 5452 which is unaltered in any material respect). The contract expressly provided for the lien upon the improvements, as well as upon the lot or lots upon which the same are to be erected. The lien upon the improvements is distinct from that on the lot, and, while it may not apply to more than lot 9, it will apply to all the improvements placed upon the homestead.”
There was no error in the judgment of - foreclosure as applied to the improvements which were a part of the structure resting upon the owner’s Lot 5. It was likewise proper to render judgment of foreclosure on such part of Lot 4 as was described in the parties’ contract and the improvements thereon.
While we do not agree with some of the court’s Conclusions of Law the judgment in the case would, in view of the state of the record, be correct in any event. Application of the law to facts properly found and to undisputed facts evidenced by the record compel the judgment.
We have not discussed many of the points of error presented, but they have all been severally considered and are overruled. All have relation to the proper application of law to the facts of the case rather than to any procedural matter.
Judgment is affirmed.