Lee v. O'Brien

54 Tex. 635, 1881 Tex. LEXIS 73

Opinion

Bonner, Associate Justice.

Appellee, M. C. O’Brien, plaintiff below, sued appellant, James Lee, upon a verbal contract of date September 1, 1877, for the value of certain work and labor done and performed, and materials furnished him in the construction of the foundation walls of a house on lot 4, block —, in the town of Weatherford, and to enforce a mechanic’s lien on the lot and materials.

On the trial below, O’Brien recovered judgment for the debt and also enforcing the hen.

Among other assigned errors is one substantially, that O’Brien failed to show that Lee had been served with a copy of the bill of particulars, as required by the statute providing for and regulating mechanics’ hens. Laws 15th Leg., 91.

This was also one of the grounds in the motion for new trial.

Although the petition alleged such service, the statement of facts fails to show that it was proven on the trial.

It is a well established rule of construction, that the provisions of the statute must be complied with substantially in every essential particular, to fix a statutory mechanic’s hen. Ferguson v. Ashbell, 53 Tex., 245.

In the recent case of Lee v. Phelps, decided at present term, which arose under the same statute, it was decided that, to entitle the plaintiff to avail himself of the hen, he must show by competent evidence that the bill of particulars was recorded and a copy served on the party owing the debt.

To the same effect is the case of Pool v. Sandford, 52 Tex., 620.

Under the testimony, the court erred in rendering judgment enforcing the alleged mechanic’s hen.

It does not become necessary to pass upon the other assigned errors.

Reversed and remanded.

[Opinion dehvered April 8, 1881.]