FANNING, Justice.
Plaintiff-appellee Logwood sued Travis Bechtold and appellant railway company, seeking a personal judgment against both defendants for $2623.16 for ready mixed concrete sold to Bechtold, for interest, attorneys’ fees and costs of suit, and plaintiff-appellee also sought to foreclose a mechanic’s and materialman’s lien on property belonging to appellant railway company. On trial, plaintiff-appellee dismissed his suit against Bechtold. Trial was to the court without the aid of a jury. The trial court entered judgment for plaintiff foreclosing his alleged lien against appellant’s property, with interest and costs; however the trial court did not render a personal judgment against appellant and did not render any judgment against appellant for attorney’s fees. Appellant railway company has appealed.
■ In late August or early September, 1963, appellant railway company entered into an
oral contract with Bechtold to tear out old floors of two buildings owned by appellant and to install new concrete floors. Bech-told was a cement contractor who had his own equipment and employees, and he agreed to furnish all labor and material to do the job on a “turn-key” basis for the sum of $8600.00, except that appellant would furnish the necessary reinforcing bars. Bechtold started the job soon after the contract was made and finally completed the job on September 17, 1963. He performed the work satisfactorily and appellant paid Bechtold for the job in three checks, the first dated September 4, 1963, the second dated September 12, 1963, for $900.00, and the third and final check dated September 18, 1963, for the balance of $6,-161.18. The discrepancy between the total amount paid and the turn-key price of $8,-600.00 was caused by the appellant’s furnishing crushed slag of $38.82, which amount was deducted from the original contract price.
After the contract between Bechtold and appellant was made, Bechtold contacted Logwood and made a sub-contract with him for ready-mixed concrete to be delivered to the job site at a fixed price per yard. From time to time during the construction period plaintiff made deliveries of ready mixed concrete to the job site, and on these occasions he or his agents would have someone sign a copy of the delivery tickets. Plaintiff did not identify what persons signed the tickets, nor whether they worked for plaintiff Bechtold or someone else, however Bechtold testified to the effect that all of the tickets were signed by him personally or by his employees.
When the job was finally completed on Sept. 17, 1963, plaintiff-appellee submitted his bill for the ready-mixed concrete to Bechtold, but the same was never paid.
On October 19, 1963, which was more than 30 days after the job was completed on Sept. 17, 1963, the plaintiff-appellee sent to appellant a statement, which was addressed to Bechtold at Dallas, Texas, which set forth Sept. Balance Due: $2,623.16, and which contained a notation to the effect that a statement had been mailed to Bech-told at Longview, Texas, on Sept. 17, 1963 (Bechtold was located at Longview at the time of the original contract).
Sometime in October, 1963, plaintiff-appellee telephoned the president of appellant railway company and a conversation was had about payment of plaintiff’s bill. The parties are at variance as to the conversation, but, whatever the conversation was, appellant made no payment. On Nov. 27, 1963, plaintiff-appellee filed a mate-rialman’s lien affidavit in the county where appellant’s property was located, in which he swore to the effect that he furnished concrete of a value of $2,723.16 to “Travis Bechtold or Travis Bechtold Cement Company”, a contractor or builder, and in said lien affidavit described certain property of appellant railway company which included the property upon which the ready-mixed cement was placed.
In 1961, chapter two of Title 90, (being articles 5452 through 5472c) Revised Civil Statutes of Texas was amended. The new Title is Chapter 382, and amends Articles 5452, 5453, 5454, 5455, 5456, 5463, 5467, 5468, 5469 and 5472d. In this connection, see an article by Ralph D. Baker, “The New Mechanics’ Materialmen’s Lien Law”, 26 Texas Bar Journal, December, 1963, p. 1009.
Art. 5453, V.A.C.S., provides the method of fixing the mechanic’s and materialmen’s lien granted in Article 5452, V.A.C.S. In order to perfect a lien, original contractors, within one hundred and twenty days after the accrual of indebtedness, and subcontractors within 90 days, are required to file with the county clerk of the county in which the work was performed setting forth the nature of their claims and the property against which the lien is sought. Art. 5453 imposes an additional requirement applicable to anyone not an original con
tractor — that of notice. Pertinent portions of said article are quoted below.
Article 5463 is also quoted below.
Article 5469 is also quoted below.
In 38 Tex.Jur.2d, Mechanics’ Liens, Section 45, p. 600-2, it is stated:
Ҥ 45. Liability of owner;
“It has been held that, though in a proper case the lien statutes subject the property of the owner to the lien of claimants for improvements on the property, the statutes do not create a personal liability on the owner’s part — that is, the proceeding to fix the lien does not create a debt against the owner unless he has incurred personal liability by paying money to the contractor after receiving notice of the claim. In this connection, where a statement or billing is sent to the owner, as notice of a lien claim arising from a debt incurred by a contractor, if the statement or billing is to be effective to authorize the owner to retain funds for the payment of the claim as provided by statute, it must contain or be accompanied by some form of statement to the owner to the effect that if the bill remains unpaid he may be personally liable and his property subjected to a lien unless he withholds payments from the contractor for the payment of the statement or unless the bill is otherwise paid or settled. It is further provided that the owner shall in no case be required to pay, nor his property be liable for, any money, other than that required to be retained by him under the statutory provisions, that he may have paid to the contractor before he was authorized to retain the money. If the notices of lien claimants have been received by the owner and claimant’s lien has been secured in accordance with the applicable statute and the claim or any part thereof is reduced to final judgment, the owner is required to pay, and his property is to be liable for, any money that he may have paid to the contractor after he was authorized to retain the amount of money necessary to pay claims from payments to the original contractor.
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FANNING, Justice.
Plaintiff-appellee Logwood sued Travis Bechtold and appellant railway company, seeking a personal judgment against both defendants for $2623.16 for ready mixed concrete sold to Bechtold, for interest, attorneys’ fees and costs of suit, and plaintiff-appellee also sought to foreclose a mechanic’s and materialman’s lien on property belonging to appellant railway company. On trial, plaintiff-appellee dismissed his suit against Bechtold. Trial was to the court without the aid of a jury. The trial court entered judgment for plaintiff foreclosing his alleged lien against appellant’s property, with interest and costs; however the trial court did not render a personal judgment against appellant and did not render any judgment against appellant for attorney’s fees. Appellant railway company has appealed.
■ In late August or early September, 1963, appellant railway company entered into an
oral contract with Bechtold to tear out old floors of two buildings owned by appellant and to install new concrete floors. Bech-told was a cement contractor who had his own equipment and employees, and he agreed to furnish all labor and material to do the job on a “turn-key” basis for the sum of $8600.00, except that appellant would furnish the necessary reinforcing bars. Bechtold started the job soon after the contract was made and finally completed the job on September 17, 1963. He performed the work satisfactorily and appellant paid Bechtold for the job in three checks, the first dated September 4, 1963, the second dated September 12, 1963, for $900.00, and the third and final check dated September 18, 1963, for the balance of $6,-161.18. The discrepancy between the total amount paid and the turn-key price of $8,-600.00 was caused by the appellant’s furnishing crushed slag of $38.82, which amount was deducted from the original contract price.
After the contract between Bechtold and appellant was made, Bechtold contacted Logwood and made a sub-contract with him for ready-mixed concrete to be delivered to the job site at a fixed price per yard. From time to time during the construction period plaintiff made deliveries of ready mixed concrete to the job site, and on these occasions he or his agents would have someone sign a copy of the delivery tickets. Plaintiff did not identify what persons signed the tickets, nor whether they worked for plaintiff Bechtold or someone else, however Bechtold testified to the effect that all of the tickets were signed by him personally or by his employees.
When the job was finally completed on Sept. 17, 1963, plaintiff-appellee submitted his bill for the ready-mixed concrete to Bechtold, but the same was never paid.
On October 19, 1963, which was more than 30 days after the job was completed on Sept. 17, 1963, the plaintiff-appellee sent to appellant a statement, which was addressed to Bechtold at Dallas, Texas, which set forth Sept. Balance Due: $2,623.16, and which contained a notation to the effect that a statement had been mailed to Bech-told at Longview, Texas, on Sept. 17, 1963 (Bechtold was located at Longview at the time of the original contract).
Sometime in October, 1963, plaintiff-appellee telephoned the president of appellant railway company and a conversation was had about payment of plaintiff’s bill. The parties are at variance as to the conversation, but, whatever the conversation was, appellant made no payment. On Nov. 27, 1963, plaintiff-appellee filed a mate-rialman’s lien affidavit in the county where appellant’s property was located, in which he swore to the effect that he furnished concrete of a value of $2,723.16 to “Travis Bechtold or Travis Bechtold Cement Company”, a contractor or builder, and in said lien affidavit described certain property of appellant railway company which included the property upon which the ready-mixed cement was placed.
In 1961, chapter two of Title 90, (being articles 5452 through 5472c) Revised Civil Statutes of Texas was amended. The new Title is Chapter 382, and amends Articles 5452, 5453, 5454, 5455, 5456, 5463, 5467, 5468, 5469 and 5472d. In this connection, see an article by Ralph D. Baker, “The New Mechanics’ Materialmen’s Lien Law”, 26 Texas Bar Journal, December, 1963, p. 1009.
Art. 5453, V.A.C.S., provides the method of fixing the mechanic’s and materialmen’s lien granted in Article 5452, V.A.C.S. In order to perfect a lien, original contractors, within one hundred and twenty days after the accrual of indebtedness, and subcontractors within 90 days, are required to file with the county clerk of the county in which the work was performed setting forth the nature of their claims and the property against which the lien is sought. Art. 5453 imposes an additional requirement applicable to anyone not an original con
tractor — that of notice. Pertinent portions of said article are quoted below.
Article 5463 is also quoted below.
Article 5469 is also quoted below.
In 38 Tex.Jur.2d, Mechanics’ Liens, Section 45, p. 600-2, it is stated:
Ҥ 45. Liability of owner;
“It has been held that, though in a proper case the lien statutes subject the property of the owner to the lien of claimants for improvements on the property, the statutes do not create a personal liability on the owner’s part — that is, the proceeding to fix the lien does not create a debt against the owner unless he has incurred personal liability by paying money to the contractor after receiving notice of the claim. In this connection, where a statement or billing is sent to the owner, as notice of a lien claim arising from a debt incurred by a contractor, if the statement or billing is to be effective to authorize the owner to retain funds for the payment of the claim as provided by statute, it must contain or be accompanied by some form of statement to the owner to the effect that if the bill remains unpaid he may be personally liable and his property subjected to a lien unless he withholds payments from the contractor for the payment of the statement or unless the bill is otherwise paid or settled. It is further provided that the owner shall in no case be required to pay, nor his property be liable for, any money, other than that required to be retained by him under the statutory provisions, that he may have paid to the contractor before he was authorized to retain the money. If the notices of lien claimants have been received by the owner and claimant’s lien has been secured in accordance with the applicable statute and the claim or any part thereof is reduced to final judgment, the owner is required to pay, and his property is to be liable for, any money that he may have paid to the contractor after he was authorized to retain the amount of money necessary to pay claims from payments to the original contractor.
“It has been held that except insofar as he is restrained by the statutes that require him to retain a specified percentage of the contract price, and to withhold sufficient money to pay claims of which he has notice, the owner may pay the contractor the amount due him under the contract, trusting the contractor to pay his own employees.”
Under the contract between appellant railway company and Bechtold there were no provisions for retainage and the railway company paid Bechtold in full when the contract was completed. Appellee’s notice of Oct. 19, 1963, to appellant was not couched in the statutory language requiring appellant to withhold retainage and was also given after the job in question was completed and after Bechtold had been fully paid for the job by appellant railway. Also, the delivery tickets in question were not couched in terms to constitute statutory notice and are wholly deficient to constitute statutory notice. Appellee’s lien affidavit was also filed more than thirty days after the job was completed and Bechtold was fully paid. While appellant under the terms of Art. 5469, V.A.C.S., should have retained 10% of the contract price, etc., for a period of thirty days after the completion of the job under the formula described in said statute, nevertheless the failure of appellant to retain said 10% for a period of thirty days after the completion of the job would not result in the appellant becoming liable for the amount of the 10% retainage, because appellee’s lien was not filed until Nov. 27, 1963, which was more than thirty days after the completion of the job.
Under the facts in this case, appellant was not liable to appellee in any amount and appellee did not have a valid lien in any amount against the property of appellant. In this connection see the following authorities: Berry v. McAdams, 93 Tex. 431, 55 S.W.
1112
(1900); Eldridge v. Poirer, Tex.Civ.App., 50 S.W.2d 888, writ refused (1932); Henderson v. Couch, Tex. Civ.App., 274 S.W.2d 844, no writ (1955); Texas State Bank of Alice v. Baker, Tex. Civ.App., 275 S.W.2d 168, no writ (1955); Marek v. Goyen, Tex.Civ.App., 346 S.W.2d 926, no writ (1961).
In Berry v. McAdams supra (55 S.W. 1112) it was stated in part as follows:
“* * * The validity of McAdams’ lien against the property of Housewright, Swayze & Co. depends upon his compliance with the requirements of the statutes enacted in pursuant of the constitution of this state. From the statement, it appears that McAdams did not give written notice of his claim for material furnished to Housewright, Swayze & Co. before they had paid to Berry the amount due him under the contract for building the house, and, by the terms of article 3308, Rev.St., Housewright, Swayze & Co. were not liable to McAdams for the material furnished to the subcontractor.
⅜ sfs ⅜
“Appellee insists that the notice required by the statute is for the benefit of the owner of the property improved, and that actual knowledge by Housewright, Swayze & Co. was a sufficient compliance with the law. The language, ‘but no owner or proprietor shall in any case be required to pay, nor his property be liable for, any money that he may have paid to the contractor before the fixing of the lien or before he has received written notice of the existence of the debt,’ is so explicit that the court cannot construe it to mean something less. The policy of the law is to relieve the owner from demands upon the ground of actual knowledge and constructive notice, because he could rarely defend himself from such claims. Written notice is certain and definite information upon which the owner must act. McAdams did not fix his lien nor give the written notice before payment was made by House-j wright, Swayze & Co. to Berry, the contractor, and is not entitled to enforce a lien upon their property for material furnished to a subcontractor.”
Appellee has filed a cross-point on appeal contending that the trial court erred in not awarding to plaintiff a personal judgment against appellee and also a judgment for attorney’s fees as prayed for. This cross-point is overruled.
The judgment of the trial court insofar as it denies a personal judgment to appellee and denies attorney’s fees to appellee is affirmed; the judgment of the trial court in all other respects is reversed and judgment is rendered that appellee take nothing from appellant.
Affirmed in part and reversed and rendered in part.