Pool v. Wedemeyer & Schulte

Stayton, Associate Justice.— The question of the sufficiency of the petition of intervention of Wedemeyer & Schulte was involved in the decision of this cause when before this court upon former appeal, and it was then decided, that while it did not show that Sandford was entitled to a mechanic’s lien, yet that the same was sufficient if sustained by evidence to give them a lien as against Pool as principal contractors; and we now see no sufficient reason to authorize us to come to a contrary conclusion. It is claimed that the court erred in establishing a lien in favor of Wedemeyer & Schulte. The grounds upon which it is claimed that the court erred in this regard are not clearly set out, either in the assignments of error or brief of counsel. The grounds relied upon in oral argument are, in- substance: 1st. That the paper filed and recorded, under which the lien is claimed, does not clearly set out what the contract was. 2d. That the paper recorded does not contain a sufficient bill of particulars. The statute upon which the rights of the parties in this cause rest was enacted to secure to the laboring man the just reward for his toil, and to him who furnishes material to erect or repair the home, house, or other improvement of another, an honest compensation therefor. There is no subject within the range of judicial action in which construction has been so diverse and varied as that applicable to laws regulating the liens of mechanics — 296 — and material menj and some of the courts of the different states seem to have felt that they were authorized, in some instances, to engraft upon the plain terms of the statute, by construction, principles operating harshly or beneficially to the respective parties, as a supposed public policy might seem 'to indicate as proper. The matter is well stated by an elementary writer as follows: “ Among the decisions of the various states, there is an apparent conflict as to what should be deemed the policy of the law applicable to those Was, and the true spirit in which these statutes should be. interpreted. Adjudications will be found declaring it to be against the genius of government to make distinctions between its citizens, or to prefer one class by granting them special privileges in derogation of the rules of common law, and consequently those laws should be construed strictly; there are others equally numerous to the effect that correct policy dictates the fostering of this remedy for purposés of improvement of the country and the protection of often unlettered men, and that a free interpretation should be given them in favor of the mechanic.” Phillips on Mechanics’ Liens, 24. With the policy of a law the courts should have but little concern; to shape that pertains to another department of the government. The simple question in the construction and application of a statute is, what was the legislative intention in its enactment, as the same is to be found in the "language in which the statute is written, considered with reference to the every-day wants and business of the people for whose government the same-was enacted? That being ascertained and applied, the duty of the court is performed, whether the policy thereby subserved is good or bad. In this case it is not claimed that there was a written contract from which the lien arises, but the same is claimed under a verbal contract. The statute provides — 297 — that “ If the contract, order or agreement be verbal, a duplicate copy of the bill of particulars shall be made under oath, one to be delivered to the clerk to be filed and recorded as provided for written contracts, and the other to be served upon the party owing the debt.” This language does not in terms direct that the terms of the verbal contract shall be set out with the bill of particulars in the paper to be recorded, but upon the contrary the fair import of the language conveys the idea that it was not intended that verbal contracts should be set out, or that contracts by law implied from the acts of the parties should be put into words and recorded. In case of written contracts the statute expressly requires the same to be recorded. It further provides that “ when such contract or account is filed and recorded it shall be deemed sufficient diligence,” etc.; not when such contract and account is filed and recorded. In this case the account filed states “that said work was done at the request and with the approval of said Pool.” This was enough, if true, to raise an implied contract to pay for the same, which certainly was all that the owner of the property or any other person could require to put them upon notice of the extent and character of the mechanic’s demand sought to be secured by the lien. The statute not requiring more, it must be held sufficient. Was the bill of particulars sufficiently full and certain? The statute does not define the term “bill of particulars,” and we must look to the purposes and reasons which required the making of the same in order to determine what is meant thereby. In so far as the owner is concerned, the manifest reason for giving to him a bill of particulars is to give him notice of the matter for which he stands charged and of the sum for which the lien is claimed. In so far as it concerns other persons than the owner of the property, it is required that they may have notice of the extent and character of the claim for which — 298 — the lien exists, or at the utmost that they may have such knowledge as will enable to determine whether a lien upon the property really exists or not. Whatever puts parties upon notice of these facts must be regarded as a sufficient “bill of particulars.” The item in this case was, “ To painting house, out and inside, two coats, $405; ” the number of the lots and block upon which the house stood on which the labor was done were given, and the same was stated to be in Galveston, Texas. The paper recorded did not show that there was an express verbal contract to pay the named sum for painting the house, but the evidence shows that such was the case; this does not show a variance in the contract as made and as would be implied from the paper recorded; and we only refer to this matter here for the reason that when an entire job is done under contract the same reason and necessity do not exist for giving the various items of work or material as would exist in a case where there was no express contract, under which uncertain work is to be done for a sum certain. When an entire work is done under an express verbal contract, when both labor and material enter into the same, the reason of the requirement would not render it necessary to set out each item of material and labor furnished or done, but the same may be aggregated as one item, and it will be sufficient. Phillips on Mechanics’ Liens, 350, 352, and citations. A substantial compliance with the requirements of the statute must be had or the lien does not exist; but a construction so strict as in effect to require something done which the statute in neither terms nor spirit requires, is to legislate terms into the statute. The account of Wedemeyer & Schulte was filed within the time provided by the statute, and that it did not bear the exact date on which the work was completed is not believed to have been important. The objection of the appellant to the paper offered in — 299 — evidence and purporting to be a duplicate of the paper which was recorded by C. H. Moore & Co., to acquire a lien, should have been sustained; for the certificate of the constable was not sufficient or competent evidence of service of same on Pool. It is only when an act is done by a constable in the performance of some official duty imposed upon him by law, that his return becomes sufficient or admissible evidence of his act; such duty was not imposed in the matter now in question. The constable should have been called as a witness, or proof of the fact otherwise made that a duplicate of the paper recorded was delivered to Pool in order to fix the lien; there being no proof of that fact, no lien was shown to exist. The agreement of the parties entered into for the purpose of the trial must be held binding upon them and conclusive of the facts therein admitted to be established. It provided that “the following facts are hereby agreed upon, and are to be considered as established upon the trial of the above cause without the introduction of evidence. , . . The value of the material furnished by C. H. Moore & Co. was $802.05, and was sold and charged to Sandford.” The legal effect of this agreement was to establish that the material furnished by Moore & Co. was not originally sold to Pool but to Sandford, and upon his credit; but while this is true, it is believed that the court did not err hi permitting the witness Schadt to testify as to the agreement of Pool to pay for the material. The pleadings of the appellant did not set up the statute of frauds as a defense in this case, and in the absence of such a defense, which he might waive by not pleading it, even if the credit was given originally to Sandford, Pool might be held liable personally for the value of the material furnished at his request and for which he — 300 — promised to pay, and this notwithstanding such promise was not in writing. League v. Davis, 53 Tex., 9; Erhard v. Callighan, 33 Tex., 171; Browneton Statute of Frauds, 508; Lead. Cas. in Equity, vol. 1, part 2, 1042, 1062. In this case there was no objection made to proof of a verbal promise by Pool to pay for the material furnished, upon the ground that the promise was not in writing, and if such a defense could be made under the general denial, which is not now necessary to decide, the failure to object to the evidence of Schadt upon that ground, upon principle and upon the authorities above referred to, must be held to be a waiver of that defense. The rule is that a party must make the objections upon which he relies in the court below* and such as are not then made cannot be raised in this court for the first time. It is urged that the court erred in subjecting the interest of Mr. Pool to sale for the satisfaction of the lien established by the court upon the property upon which the work was done. We do not see the force of this objection; the property was community property of Mr. Pool and his wife, who died pending the suit, but there was no averment of that fact in any of the pleadings. While it is true that the lien would be a charge upon the entire property, yet in the absence of some affirmative action taken by the appellant to have it so declared, he surely has not been injured, and cannot complain that his interest in the property is subjected for sale to pay a debt for which he is liable and upon which a lien has been established. The principle applicable to a suit for partition, in which all parties in interest must be made parties to the suit, has no application to this case. If on account of the sale of Pool’s interest in the property he is compelled to pay a debt which is a charge upon the entire community interest, then the equities arising between him and his — 301 — children can be adjusted whenever he may desire to have the same done. [Opinion delivered February 17, 1882.] But the fact that such equities may arise in the future furnishes no sufficient reason why his interest in the property should not be sold to satisfy such hens as exist thereon. There being no error in the judgment of the court below, in so far as the same affects the judgment rendered in favor of Wedemeyer & Schulte v. Wm. Pool, the same is in all things affirmed; but in so far as the judgment of the court below established a hen in favor of C. H. Moore & Co., the same is erroneous, and the judgment of the court below in that respect wifi be reformed, but in all other respects the judgment rendered in favor of C. H. Moore & Co. is "affirmed; Wm. Pool as against C. H. Moore & Co. to recover the costs of his appeal, and Wedemeyer & Schulte to recover their costs hi this appeal from Wm. Pool. Judgment reformed.