The most important of these restrictions sharply limits the number of potential defendants: the lien may only be asserted by one in privity with the owner of property in question. First Nat'l Bank of Paris v. Lyon-Gray Lumber Co., 194 S.W. 1146 (Tex.Civ.App.-Texarkana 1917), aff'd, 110 Tex. 162, 217 S.W. 133 (1919); see also Woodward, supra, at 316-17; Eldon L. Youngblood, Mechanics' and Materialmen's Liens in Texas, 26 Sw.L.J. 665, 688 (1972); accord First Baptist Church of Tyler v. Carlton Lumber Co., 173 S.W. 1179 (Tex.Civ.App.-Texarkana 1915, writ ref'd). The Texarkana Court of Appeals' decision in Lyon-Gray was the most significant in this respect.
But here the materials were not supplied to the owner of the property but to a general contractor. In First Baptist Church of Tyler v. Carlton Lumber Co., Tex.Civ.App., wr. ref., 173 S.W. 1179, the materials were furnished to a general contractor, and not the owner, and the court in denying claim of constitutional lien said: 'Under the facts appellee was not itself the contractor with the owner of the building, but merely furnished to the contractor, under a contract separately and distinctly with the contractor so to do, the lumber and material for which the lien is claimed.
The appellees, on the other hand, counter with this suggestion: "The fact-issues involved herein, as set forth in the trial court's findings of fact, are different from the facts involved in the authorities relied upon by appellants, in that the material in question was ordered direct from appellant by L. D. Fore, subcontractor; was delivered upon the premises under construction; receipted for by, and charged by appellant direct to L. D. Fore, without the expressed authority, consent, or knowledge of appellees, their agents, servants, or employees, or either of them, and without any privity of contract between said furnishers of material and said owner of the property or master contractor, appellees herein," relying for support upon these authorities: Article 16, Section 37, Constitution of Texas; First Baptist Church v. Carlton Lumber Company, Tex. Civ. App. 173 S.W. 1179; First National Bank v. Lyon-Gray Lumber Co., Tex. Civ. App. 194 S.W. 1146; Horan v. Frank, 51 Tex. 401; Shields v. Morrow, 51 Tex. 393. It is concluded: (1) That the issue thus joined on the appeal has been foreclosed against the challenged holding below, and in appellants' favor, by the Supreme Court in Wilson v. Sherwin-Williams, cited by them supra, upon analogous facts to those here involved; (2) that the unchallenged findings here — indeed, those so relied upon by themselves — differentiate this cause from First Baptist Church v. Carlton, et id genus omne, upon which the appellees' quoted-position rests.
Neither did the original contractor, and Deen acted exactly as did the contractor; he paid for labor and material with Mrs. Gay's money. The case of First Baptist Church v. Carlton Lumber Co. (Tex.Civ.App.) 173 S.W. 1179, is not in point. In that case, when the contractor abandoned his job, another contract was made with the surety to finish the work.
The above findings of the court are adopted as the findings of this court. If the building involved had been one against which a mechanic's lien could have been fixed, then the provisions of our mechanic's lien law would have been read into, and become a part of, the contract fixing the respective rights of the owner, the sureties on the contractor's bond, and those furnishing labor and material for said building, and, if the owner followed the provisions of said statutes in making payment to the contractor, that is, if the owner had paid to the contractor the full contract price in accordance with the terms of the contract, including the provisions of said statutes, there would have been no further liability on their part. Article 5461, and section 3 of article 5453, Revised Statutes 1925; also the following cases cited by appellant city: Lonergan et al. v. San Antonio Trust Co., 101 Tex. 63, 104 S.W. 1061, 106 S.W. 876, 22 L.R.A. (N.S.) 364. 130 Am.St.Rep. 803; First Baptist Church v. Carlton Lumber Co. (Tex.Civ.App.) 173 S.W. 1179; Thompson et al. v. Kleinman (Tex.Civ.App.) 259 S.W. 593. However, it is equally true, if the owner, after being served with notice of claims for labor or material due by the contractor, and at a time when the owner is indebted to the contractor, thus impounding said claims in his hands as in garnishment, as provided by our mechanic's lien statutes, supra, should proceed to pay the amount of said claims to the contractor, the owner would become liable therefor, although he may have paid the entire contract price to the contractor.
Disregarding the homestead feature, it is clear that Wilcox had no valid lien independent of the contract lien, for material furnished the builders before they abandoned the contract, unless he complied with the statutory provisions. Berry v. McAdams, 93 Tex. 431, 55 S.W. 1112; First Baptist Church v. Carlton Lbr. Co. (Tex.Civ.App.) 173 S.W. 1179; First Nat. Bank v. Lyon-Gray Lbr. Co. (Tex.Civ.App.) 194 S.W. 1146, affirmed on writ of error, 110 Tex. 162, 217 S.W. 133; McLennan v. Kellogg Drilling Co. (Tex.Civ.App.) 273 S.W. 350. Compliance by Wilcox with the statute was not shown.
Interpreting this provision of the Constitution, the courts hold that this section does not fix a lien, independent of the action required by the statute, in favor of one furnishing material to a contractor, consequently, appellant could not rely on a lien by virtue of the Constitution, but must comply with the provisions of the statute to give validity to the lien. Atkinson v. Jackson Bros. (Tex.Civ.App.) 259 S.W. 280; First National Bank v. Lyon-Gray Lumber Co. (Tex.Civ.App.) 194 S.W. 1147, Id., 110 Tex. 162, 217 S.W. 133; Lecouteur Bros. Stair Mfg. Co. v. Lyon-Gray Lumber Co., 110 Tex. 177, 217 S.W. 136; Berry v. McAdams, 93 Tex. 434, 55 S.W. 1112; First Baptist Church v. Carlton Lumber Co. (Tex.Civ.App.) 173 S.W. 1179. Article 5639b, Vernon's Ann.Civ.St. Supp. 1918, provides that a materialman who shall furnish material or supplies to a contractor for a well shall have a lien upon the material and supplies furnished In the same manner and to the same extent as the original contractor; and article 5639d, provides that, to fix such lien, notice thereof shall be given and filed and recorded within the same time and in the same manner as provided in chapter 2, title 86, Revised Statutes of 1911, "relating to liens for mechanics, contractors, builders, and materialmen."
"Until notices of subcontractor's claims are given to owner, in accordance with the statute, he and contractor may make such settlements as they choose, and owner may make prepayments upon the contract, or may accept assignments of any future estimates to become due upon the same, or may obligate himself to assume any indebtedness of contractor to others, and should he do so, then such prepayments, assignments, or assumption of liability to others take precedence over all subcontractor's claims, of which the owner had only subsequent notice." The case of First Baptist Church v. Carlton Lumber Co. (Tex.Civ.App.) 173 S.W. 1179, is also directly in point. There was no privity of contract between Kleinman and the plaintiff and interveners; they occupied the position of subcontractors, mechanics, laborers, and materialmen, having no direct contractual relation with Kleinman, the owner; their rights are purely statutory, and strict compliance with the statutory requirements as to the giving of written notice of each and every item furnished, etc., and by filing and having recorded in the office of the county clerk of the county in which the property is located, an itemized account of the claim within the time prescribed by the statute, are necessary prerequisites to the establishment of their claim for preference in payment, and for a lien upon the property of the owner.
The statute further provides that after the fund mentioned has been impounded by the statutory procedure the owner's property can be taken to force the rightful payment of the impounded fund to those who invoked the procedure. Horan v. Frank, 51 Tex. 401; First Baptist Church v. Carlton Lumber Co., 173 S.W. 1179 (writ of error denied by the Supreme Court, 183 S.W. xv); First National Bank v. Lyon-Gray Co., 194 S.W. 1146; Lyon-Gray Lumber Co. v. Nacona Cotton Oil Mill, 194 S.W. 633; Texas Glass Paint Co. v. Crowdus (Sup.) 193 S.W. 1072; Thelander v. Becker, 199 S.W. 848; Kahler v. Carruthers, 18 Tex. Civ. App. 216, 45 S.W. 163; Texas Glass Paint Co. v. S.W. Iron Co., 147 S.W. 622; Strang v. Pray, 89 Tex. 525, 35 S.W. 1054; Berry v. McAdams, 93 Tex. 434, 55 S.W. 1112; Shields v. Morrow, 51 Tex. 393; Lonergan v. Trust Co., 101 Tex. 80, 104 S.W. 1061, 106 S.W. 876, 22 L.R.A. (N.S.) 364, 129 Am.St.Rep. 803; Cameron v. Terrell, 36 S.W. 102; Cameron v. True-heart, 165 S.W. 58; Guarantee S. L. I. Co. v. Cash, 87 S.W. 749; James v. St. Paul Sanitarium, 24 Tex. Civ. App. 664, 60 S.W. 322. The statute is not unconstitutional.
On the other hand, in the case of Beilharz v. Illingsworth, 62 Tex. Civ. App. 647, 132 S.W. 106, decided by the Court of Civil Appeals of the Fifth District, in which a writ of error was refused, and the case of Texas Builders' Supply Co. v. Beaumont Construction Co., 150 S.W. 770, it is directly held that one who furnishes material to a contractor is entitled to a lien under the terms of the Constitution, and that full compliance with the statutory requirement in filing an itemized account in the office of the county clerk was not necessary where the rights of subsequent purchasers were not involved. But in the case of First Baptist Church v. Carlton Lbr. Co., 173 S.W. 1179, a contrary ruling was announced by this court, and a writ of error was refused by the Supreme Court. Other conflicting cases might be referred to, but these, we think, are sufficient to disclose the discord among the courts.