Warner Elevator Company v. Maverick , 88 Tex. 489 ( 1895 )

The plaintiff in error has filed a motion for rehearing in this cause, asking that we pass upon the sufficiency of the amended original petition, independent of the trial amendment. The grounds of the motion are set out as follows:

"1. In the brief of plaintiff in error before the Court of Civil Appeals, as well as in its brief before this court, plaintiff in error has rested its case principally upon the sufficiency of its first amended original petition, independently of the trial amendment setting up a demand and refusal of the original propositions.

"2. The opinion of this court is rested entirely upon said demand and refusal set up in said trial amendment.

"3. The material facts alleged in the first amended original petition, namely, that the propositions were sent to Maverick and remained in his possession and beyond the control of plaintiff in error, are beyond controversy; whereas the further facts (alleged in the trial amendment) of a demand and refusal of these propositions are contested.

"4. If the case goes to the District Court under the present opinion, and the evidence should be held not to sustain said allegations of a demand and refusal of the original propositions, another appeal will be necessary in order to test the sufficiency of the petition independently of the trial amendment."

In passing upon this case, we considered that the trial amendment made the petition good without reference to the questions arising upon the amended original petition, and therefore did not feel called upon to determine the question independent of the trial amendment. Since the plaintiff in error desires a decision upon the question as to the sufficiency of the petition without regard to the trial amendment, and because from the statements made a failure to determine the question may result in protracting the litigation, we will consider the matter upon the amended original petition.

The substance of the amended original petition upon the question of lien is given in our former opinion, and will not be repeated, except so far as is necessary to understand the very point involved.

The petition, after alleging the facts constituting the right of action and the lien claimed under the statute, alleged, in substance, that the work was done and material furnished under a written contract made by the submission on the part of plaintiff of written propositions to do the work, giving the terms upon which it would be done, and the acceptance of the propositions by Sam Maverick, by telegram sent to plaintiff. It was alleged, that written propositions were sent by mail to Maverick, which were in his possession, while the telegrams were in possession of the plaintiff. As said in the former opinion, this constituted a contract in writing between the parties. The question in this case is, was plaintiff required to file and have recorded a contract of which he had possession of only a part? Or if the entire contract had been in the possession of the opposite party, must the plaintiff have that recorded in order to fix and secure its lien?

As stated in our former opinion in this case, the lien of the plaintiff in error is secured by the Constitution (article 16, section 37); in which it is also provided, that "the Legislature shall provide by law for the speedy and efficient enforcement of said liens." In obedience to the mandate of the Constitution, the Legislature has enacted certain laws which it becomes necessary to interpret in this case. Article 3138, Revised Statutes, subdivision 6, reads: "In all interpretations the courts shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil, and the remedy." Under this statutory direction, and in view of the purpose of the enactment under the Constitution to provide a "speedy and efficient" means of enforcing the lien, the law should be so construed as to preserve the lien and not to destroy it, if the language used may be thus interpreted. Indeed, under our Constitution, the Legislature, in our judgment, could not enact laws that would cause a defeat of the lien without fault of the party entitled thereto.

Before entering upon an examination of the statute, we will call attention to the fact that the portion of article 3165 which follows the word "provided" has none of the characteristics of a technical proviso; it does not except anything from the body of the act, nor does it limit its operation with reference to any thing or person embraced therein. It is not to be treated as a proviso in giving it effect simply because it is so designated, but the language will be considered as if the word "provided" had not been used in it, if it be necessary in order to arrive at a proper interpretation of the law. Mr. Sutherland says: "The intention of the lawmaker, if plainly expressed, must have the force of law, though it may be in the form of a proviso; the intention expressed is paramount to the form." Suth. Con. Stats., sec. 223; Carroll v. The State, 58 Ala. 401. "The intention of the lawmakers may be collected from the cause or necessity of the act; and statutes are sometimes construed contrary to the literal meaning of the words." Castner v. Walrod, 83 Ill. 178; The State v. King, 44 Mo., 283.

The solution of the question presented depends upon the interpretation of the following articles of the Revised Statutes:

"Article 3165. In order to fix and secure the lien herein provided for, it shall be the duty of every original contractor, within four months, and every journeyman, day laborer, or other person seeking to obtain the benefits of this act, within thirty days after the indebtedness shall have accrued, to file his or their contract in the office of the county clerk of the county in which the property is situated, and cause the same to be recorded in a book to be kept by the county clerk for that purpose; provided, that if such journeyman, day laborer, or other person has no written contract, it shall be sufficient for them to file an itemized account of their claim, supported by affidavit, showing that the account is just and correct, and that all lawful and just offsets, payments, and credits known to the affiant have been allowed."

"Article 3167. If there be no written contract, it shall be the duty of the person seeking to obtain the benefits of this act to deliver to the clerk of the county court a sworn account, as provided for in sections 2 and 3, to be filed and recorded as therein provided," etc.

The purpose of the Legislature was to provide a "speedy and efficient means" for enforcing liens arising out of two classes of contracts. The former article relates to those contracts which are evidenced by writing, and the latter to such as are not in writing. The first part of article 3165 applies to those written contracts of which the claimant has possession and control, while the portion called a proviso relates to such written contracts as are not under the control of the person asserting the lien.

The evident purpose of the Legislature was to allow the person claiming a lien under a written contract to file and have it recorded in order to give notice of its existence, saving the trouble of making out an account; but in case the contract could not be filed, then he must make out and file the required account.

What is the meaning of the words, "his or their contract?" If it had been intended to require the filing and recording of every contract in writing, the intention would have been better expressed by the use of the words, "the contract." Every note or other contract is the contract of the party who signs it, in the sense that he is bound by it; but in the sense that it belongs to him, it is not his. In the latter sense, it is the contract of the party who is entitled to the possession and control of it. The thing to be done indicates that the party required to perform it has the ability to comply with the law, which would not be the case if he did not possess and had no right to control the instrument. By the use of the words, "his or their contract," the Legislature meant such contract as the party claiming the benefit of the act was in possession of. This is made more evident by the use of the word "have" in the succeeding clause designated as a proviso. By that clause a means of securing the lien claimed under a written contract was provided in favor of one who did not have, that is, possess, such a contract. If the words "provided that" be omitted from the act, the intention will be more clearly stated, making it read, "to file his or their contract in the office of the county clerk of the county in which the property is situated, and cause it to be recorded in a book to be kept by the clerk for that purpose, if such journey-man, day laborer, or other person have no written contract," etc. The intention of the Legislature was to make provision in the proviso for a contingency that might and often does happen where the partly claiming the lien has not the possession of the writing, and therefore could not comply with the requirements of the preceding clause of the section.

If this be not the proper construction of the language, this law would place it in the power of the owner of the property sought to be subjected to the lien to defeat it entirely, by refusing to surrender the contract for filing and recording. Such a construction of the language would make the law of doubtful validity under the Constitution.

It is urged that contractors are not embraced in the latter clause or proviso, because they are named in the first clause as well as "other persons," and omitted from the proviso; and therefore it is to be construed, that they are excluded from the benefits of the proviso. The intention was to secure the claimants of liens under both phases of the case, and there is no reason for supposing that the Legislature intended to deprive the contractor of equal benefits with all persons. The words "all other persons" are broad enough to include them, and considering the subject of legislation and the purpose of the enactment, we conclude, that the Legislature did not intend to except or exclude any of the persons enumerated in the preceding part of the section. In this case, the allegations show a contract in writing of which plaintiff had possession of a part only, and the defendant of the other part, and that the record of that portion which plaintiff could control would not be a compliance with the law. Within the meaning of the law, the plaintiff did not "have" a written contract, and was entitled to fix the lien by filing the account in the mode alleged. The District Court erred in sustaining exceptions to plaintiff's first amended original petition.

The District Court entered judgment in favor of Shafer Braden and the Pond Engineering Company, foreclosing their liens upon the property, of which no complaint is made in this court. We are asked to affirm this judgment as to the defendants Shafer Braden, and upon examination of the record we will set aside the former judgment of this court, and enter judgment as hereafter stated.

For the error of the District Court in sustaining the defendants' exceptions to the plaintiff's original and amended petition, and for sustaining the exceptions as to the said petition as amended by the trial amendment, and the error of the Court of Civil Appeals in not sustaining the assignment of plaintiff in error based on that ruling, the judgments of the District Court and the Court of Civil Appeals are reversed, and this cause is remanded as to the plaintiff in error and affirmed as to the defendants Shafer Braden and the Pond Engineering Company, with the direction that the execution of the judgment in favor of the latter be suspended until the determination of the case as to the rights of the plaintiff in error, so far as may be necessary to secure its right of equal distribution of the proceeds of the property.

Motion overruled.

Delivered June 3, 1895.

SUPPLEMENTAL.