Merchant v. Perez , 11 Tex. 20 ( 1853 )

Lipscomb, J.

This suit was brought by the appellant against the appellee, for work and labor in building a house, and furnishing material, for the defendant, on an account stated and acknowledged by the defendant; and it claims the mechanics’s lien, as security for the payment of the money. There was no contract for the lien, as required by the statute ; (Art. 2455, Hart. Dig.;) nor is there any pretension to having observed the statutory requisition in favor of the lien of the builder. The acknowledgment to the account stated is in the following words, at the foot of the account: “San Antonio, August 20th, 1852. The above balance due to F. Merchant, for furnishing the material and building the house, in which I now reside, on Commerce Street, adjoining the store of Louis Zirk. Hcr

Signed, JOSEFA M PEREZ.

ANGEL NAVARRO, Test. ■ M“k-

The jury found a verdict for the plaintiff, for the balance acknowledged, and found that the acknowledgment, before stated, was the only evidence of the contract between the parties; and further found that the house; so built, was the homestead of the defendant. Upon this verdict the Court rendered a judgment for the amount so fonnd, but refused to decree the lien prayed to be enforced; from which judgment the plaintiff appealed.

This may be a case of great hardship on the plaintiff, to lose, under such circumstances, his labor and material; but it is not different, in principle, from those of daily occurrence, where the price of labor and property is lost, from a failure to have payment sufficiently secured. Had the parties contracted,'/under the terms of the statute, for a lien, and this before the house had been built, and become the homestead and domicil of the defendant, the case would have been altogether different; but no such contract was made, and the defendant was already living in, and occupying the house as a homestead, at the time of the only evidence of a contract; and such homestead is protected from a forced sale, by the Constitution and the statute. (See Hart. Dig. p. 73, 174,176.) We believe that there was no error in refusing to sustain and enforce the builder’s lien in this case.

Judgment affirmed.