Hardin v. Kellam

279 S.W. 921

• Court: Court of Appeals of Texas
• Decided: January 8, 1926
• Docket: No. 56.
• Status: Published

Opinions

On Motion for Rehearing.

Appellee strenuously insists that we erred in our original opinion in holding that the lien filed by appellant on the 11th day of April, A. D. 1921, was filed within 4 months after delivery of the last item of material, and was therefore a valid lien to secure the payment of the entire indebtedness, insisting that article 5636 of the Revised Statutes does not apply, on account of the agreement to pay cash for the material as delivered. It appears from the record in the case that the Breckenridge Club was not incorporated until some time in December, 1920, and from the itemized statement attached to the agreed statement of facts, the only payment ever made was on the 29th day of January, A. D. 1921.

We are of the opinion that article 5636 is applicable to the facts in this case, and that the sole issue in this case depends upon the construction of this statute, and the part to be applied to the furnishing of material reads as follows:

“When material is furnished, the indebtedness shall be deemed to have accrued at the date of the last delivery of such material, unless there is an agreement to pay for such material at a specified time.”

The Legislature could not have had in mind cash payment at the -time of delivery, for in that case ther’e would be no need of legislative relief, as the transaction would be complete upon delivery and payment.

The term “specified time” must be interpreted to mean some time to be fixed for the payment of the entire indebtedness, which could not be done until after full delivery of all material; for otherwise there would be no way in which the amount to become due for the full bill of material furnished could be ascertained.

Motion for rehearing is overruled.

RIDGELL, J., dissents. See 281 S. W. —.