Plaintiff sued Sam Maverick and Reagan Houston, assignee of said Maverick, for a debt and to foreclose a lien upon a certain lot and building in San Antonio, and made the other defendants parties, because they claimed liens upon the same property. The petition contained all necessary allegations as to the debt and the performance of the work and for material furnished, for which the lien was claimed. It alleged the filing in the clerk's office and causing to be recorded a statement of the account, the claim of lien, and description of the property on which the lien was claimed, and also with such statement a copy of the written contract for the work. The petition contains in substance the following allegations:
"That the contract between plaintiff and defendant Maverick consisted of written propositions or bids, signed by plaintiff and forwarded to defendant Maverick, and telegrams from said Maverick to plaintiff, accepting said propositions, which propositions or bids, it is alleged, alone contained the terms of said contract, the telegrams expressing only said defendant's acceptance thereof and not containing terms, all of which appears from said 'Exhibit X;' that said original written propositions were by plaintiff forwarded to said Maverick, and have ever since remained and still remain in his possession and control, and beyond the control of plaintiff; wherefore it is alleged, that during the time allowed plaintiff for fixing its said lien it was not within the power of plaintiff to file said original written propositions in the office of the county clerk of Bexar county, or to cause the same to be there recorded; but in lieu of so doing, plaintiff, on February 24, 1891, filed in the office of said clerk, and caused to be there recorded on March 3, 1891, in the records of mechanics' and builders' liens, true copies of the said written propositions and of said telegrams of acceptance, besides filing and causing to be recorded the itemized sworn account as aforesaid."
A special exception having been sustained to the petition, the plaintiff by trial amendment made the following allegations:
"That plaintiff, on or about the 24th day of February, 1891, demanded of said defendant Maverick the said original propositions, for the purpose of filing the same to fix plaintiff's mechanic's, builder's, and materialman's lien to secure said debt, and stated to said Maverick the said purpose for which he (plaintiff) desired said original propositions; but plaintiff said, that said Maverick failed and refused to deliver to plaintiff the said original propositions; wherefore, during the time allowed plaintiff for fixing its said lien, it was not within the power of plaintiff to file said original propositions in the office of the county clerk of Bexar County, or to cause the same to be there recorded."
The court sustained the following special exceptions to the petition as thus amended:
"And said defendants specially except to so much of plaintiff's petition as attempts to set up and establish a mechanic's lien; because it is alleged in said petition and the exhibit attached thereto, that the plaintiff performed the labor, furnished the material, and that his debt accrued by virtue of a written contract entered into by plaintiff and defendant Sam Maverick; and there is no allegation in plaintiff's petition that the said contract was filed for record in Bexar County, as required by law in order to fix a mechanic's lien."
Upon trial before the court judgment was rendered for the plaintiff for its debt and in favor of the other defendants for their debts, and foreclosing their liens on the lot and improvements. This judgment was affirmed by the Court of Civil Appeals.
The only question presented is the correctness of the judgment of the court in sustaining the special exceptions to plaintiff's petition.
The thirty-seventh section of article 16 of the Constitution of this State is in this language: "Mechanics, artisans, and materialmen of every class shall have a lien upon the buildings and articles made or repaired by them, for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens."
The foregoing section gives a lien to the classes of persons therein named, and such lien exists independent of the statute. Implement Co. v. Electric Light Co., 74 Tex. 607; Trammell v. Mount, 68 Tex. 215. The Constitution imposed upon the Legislature the duty of providing by law for the "speedy and efficient enforcement" of such liens. If no law had been passed upon this subject, the lien could be enforced under the general rules of equity governing the foreclosure of liens. If the Legislature had declared that such persons should not have a lien, or that any class of such persons named should not have such lien, their rights would not be affected; for the constitutional lien would be paramount to any such declaration of the Legislature.
It was within the power of the Legislature to provide the method of enforcement, and to prescribe the time within which the steps must be taken to subject the property thereto. That is what the Legislature has done, and we are to construe the law liberally in order to carry out its purpose of speedy and efficient enforcement, and not to regard it as a source of the right, and therefore to be strictly complied with, as in case of judgment liens, which are created by compliance with the law.
Article 3165, Revised Statutes, prescribes, that in order to fix and secure the lien herein provided for, it shall be the duty of every original contractor, within four months * * * after the indebtedness shall have accrued, to file his contract in the office of the county clerk of the county in which such property is situated, and cause the same to be recorded in a book to be kept by the county clerk for that purpose." If the original contractor, who has entered into a written contract with the owner of the property, fail to file his contract within the time required, then his lien would be abandoned or barred by the time prescribed, unless he show some good reason for not complying with the law.
Are we to construe this statute so as to create a forfeiture of the lien in every case of failure to so comply? Such a construction would have the effect to destroy a constitutional right by a narrow and technical construction of the statute. Instead of preserving the right, such a construction would destroy it, and fail to accomplish the purposes for which the law was enacted.
The plaintiff alleges, that he had a written contract with the defendant Maverick for the work done. We conclude, that the written bid or proposition to do the work, and the acceptance of it, constituted a contract in writing which might have been recorded in odedience to the law. The question is, did the allegations of the petition show sufficient reason for not filing the contract to excuse the failure to comply with the law? Whenever the person entitled to the lien is prevented by the act of the owner of the property from complying with the law, such act will excuse the nonperformance of the duty enjoined by the statute. Warner v. Smith, 44 Tex. 245; Read v. Gillespie, 64 Tex. 42; Trammell Co. v. Mount, 68 Tex. 215
[68 Tex. 215]; Ellis v. Batts, 26 Tex. 703.
In the cases of Warner v. Smith and Read v.
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Plaintiff sued Sam Maverick and Reagan Houston, assignee of said Maverick, for a debt and to foreclose a lien upon a certain lot and building in San Antonio, and made the other defendants parties, because they claimed liens upon the same property. The petition contained all necessary allegations as to the debt and the performance of the work and for material furnished, for which the lien was claimed. It alleged the filing in the clerk's office and causing to be recorded a statement of the account, the claim of lien, and description of the property on which the lien was claimed, and also with such statement a copy of the written contract for the work. The petition contains in substance the following allegations:
"That the contract between plaintiff and defendant Maverick consisted of written propositions or bids, signed by plaintiff and forwarded to defendant Maverick, and telegrams from said Maverick to plaintiff, accepting said propositions, which propositions or bids, it is alleged, alone contained the terms of said contract, the telegrams expressing only said defendant's acceptance thereof and not containing terms, all of which appears from said 'Exhibit X;' that said original written propositions were by plaintiff forwarded to said Maverick, and have ever since remained and still remain in his possession and control, and beyond the control of plaintiff; wherefore it is alleged, that during the time allowed plaintiff for fixing its said lien it was not within the power of plaintiff to file said original written propositions in the office of the county clerk of Bexar county, or to cause the same to be there recorded; but in lieu of so doing, plaintiff, on February 24, 1891, filed in the office of said clerk, and caused to be there recorded on March 3, 1891, in the records of mechanics' and builders' liens, true copies of the said written propositions and of said telegrams of acceptance, besides filing and causing to be recorded the itemized sworn account as aforesaid."
A special exception having been sustained to the petition, the plaintiff by trial amendment made the following allegations:
"That plaintiff, on or about the 24th day of February, 1891, demanded of said defendant Maverick the said original propositions, for the purpose of filing the same to fix plaintiff's mechanic's, builder's, and materialman's lien to secure said debt, and stated to said Maverick the said purpose for which he (plaintiff) desired said original propositions; but plaintiff said, that said Maverick failed and refused to deliver to plaintiff the said original propositions; wherefore, during the time allowed plaintiff for fixing its said lien, it was not within the power of plaintiff to file said original propositions in the office of the county clerk of Bexar County, or to cause the same to be there recorded."
The court sustained the following special exceptions to the petition as thus amended:
"And said defendants specially except to so much of plaintiff's petition as attempts to set up and establish a mechanic's lien; because it is alleged in said petition and the exhibit attached thereto, that the plaintiff performed the labor, furnished the material, and that his debt accrued by virtue of a written contract entered into by plaintiff and defendant Sam Maverick; and there is no allegation in plaintiff's petition that the said contract was filed for record in Bexar County, as required by law in order to fix a mechanic's lien."
Upon trial before the court judgment was rendered for the plaintiff for its debt and in favor of the other defendants for their debts, and foreclosing their liens on the lot and improvements. This judgment was affirmed by the Court of Civil Appeals.
The only question presented is the correctness of the judgment of the court in sustaining the special exceptions to plaintiff's petition.
The thirty-seventh section of article 16 of the Constitution of this State is in this language: "Mechanics, artisans, and materialmen of every class shall have a lien upon the buildings and articles made or repaired by them, for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens."
The foregoing section gives a lien to the classes of persons therein named, and such lien exists independent of the statute. Implement Co. v. Electric Light Co., 74 Tex. 607; Trammell v. Mount, 68 Tex. 215. The Constitution imposed upon the Legislature the duty of providing by law for the "speedy and efficient enforcement" of such liens. If no law had been passed upon this subject, the lien could be enforced under the general rules of equity governing the foreclosure of liens. If the Legislature had declared that such persons should not have a lien, or that any class of such persons named should not have such lien, their rights would not be affected; for the constitutional lien would be paramount to any such declaration of the Legislature.
It was within the power of the Legislature to provide the method of enforcement, and to prescribe the time within which the steps must be taken to subject the property thereto. That is what the Legislature has done, and we are to construe the law liberally in order to carry out its purpose of speedy and efficient enforcement, and not to regard it as a source of the right, and therefore to be strictly complied with, as in case of judgment liens, which are created by compliance with the law.
Article 3165, Revised Statutes, prescribes, that in order to fix and secure the lien herein provided for, it shall be the duty of every original contractor, within four months * * * after the indebtedness shall have accrued, to file his contract in the office of the county clerk of the county in which such property is situated, and cause the same to be recorded in a book to be kept by the county clerk for that purpose." If the original contractor, who has entered into a written contract with the owner of the property, fail to file his contract within the time required, then his lien would be abandoned or barred by the time prescribed, unless he show some good reason for not complying with the law.
Are we to construe this statute so as to create a forfeiture of the lien in every case of failure to so comply? Such a construction would have the effect to destroy a constitutional right by a narrow and technical construction of the statute. Instead of preserving the right, such a construction would destroy it, and fail to accomplish the purposes for which the law was enacted.
The plaintiff alleges, that he had a written contract with the defendant Maverick for the work done. We conclude, that the written bid or proposition to do the work, and the acceptance of it, constituted a contract in writing which might have been recorded in odedience to the law. The question is, did the allegations of the petition show sufficient reason for not filing the contract to excuse the failure to comply with the law? Whenever the person entitled to the lien is prevented by the act of the owner of the property from complying with the law, such act will excuse the nonperformance of the duty enjoined by the statute. Warner v. Smith, 44 Tex. 245; Read v. Gillespie, 64 Tex. 42; Trammell Co. v. Mount, 68 Tex. 215
[68 Tex. 215]; Ellis v. Batts, 26 Tex. 703.
In the cases of Warner v. Smith and Read v. Gillespie, the claimant of the lien had failed to give the notice to the owner of the property which the statute required, because such owner was absent from the State, and the court held, that having been prevented from complying with the statute by the act of the owner in absenting himself, the law would excuse the failure, and the lien would be preserved by complying to the extent of his ability to do so.
In the case of Trammell v. Mount, a part of the material prepared under the contract had never been delivered upon the premises and
was not used in the building, the failure to deliver being caused by the acts of the property owner, and the court held, that the lien would be enforced for that which was prepared under the contract, although not delivered, because the failure to deliver it was not caused by the fault of the contractor, but the other party. Under the statute of 1852, field notes of surveys of land were required to be returned to the General Land. Office before August 31, 1853, under pain of forfeiture of the location and survey. No exception was made in favor of any one. A surveyor and the person for whom the land was located were enjoined by the District Court at the suit of another from making return of the field notes, and could not comply with the statute.
In Ellis v. Batts the Supreme Court held, that although the statute made no provision for such a case, and the letter of the law would cause a forfeiture of the right acquired, it would be unreasonable to so construe the statute, and it was held, that the failure to return the field notes under the circumstances of that case did not work a forfeiture of the survey.
In the case of Edwards v. James, 13 Tex. 52, under the same statute, the surveyor refused to survey land previously located, and to return the field notes. The locator sued out a writ of mandamus to compel the performance of the duty, and the court held, that under such circumstances the location would not be forfeited, as the party whose rights were involved had done all that was in his power to comply with the law, and was prevented by the act of another from so doing.
It would be an unreasonable and unjust effect to give to the statute in this case, that the plaintiff, for failing to do that which Maverick prevented it from doing, should suffer the loss of a lien already existing, to the advantage of the man who prevented the recording of the contract. It is more consistent with right and a fair construction of the act, to hold, that when the plaintiff was unable, without fault on its part, to procure the written contract, it occupied the position of one who had no written contract, and having done all that was in its power to do in compliance with the law, which in fact served all the purposes of the law, it will be protected as if the written contract had not existed.
The allegations of the petition as it was amended showed a good reason for the failure of plaintiff to file the written contract as directed by the statute, and that the failure was not the fault of the plaintiff, but was caused by the act of the opposite party. From these allegations it does not appear that any injury could have resulted to the defendant Maverick or the assignee, nor does it appear that the other persons claiming liens upon the property were prejudiced by the failure to file the written contract.
The District Court erred in sustaining the exceptions to the petition, and the Court of Civil Appeals erred in not sustaining the assignment of error based upon that ruling, for which reasons the judgments
of both courts are reversed, and the cause is remanded to the District Court.
Reversed and remanded.
Delivered March 25, 1895.
DENMAN, Associate Justice, did not sit in this case.
ON REHEARING.