
    Austin & N. W. R’y Co. v. W. M. Daniels.
    (Case No. 5014.)
    1. Lien of laborees on railway—Statute construed.— The act of February 18, 1879 (R. S., Appendix, p. 4, seo. 1), creates such privity between mechanics, laborers and operatives and a railway company, for whose benefit the labor contemplated by the act is performed, as entitles the former to maintain an action directly against such company-to enforce the lien which the statute gives for their benefit.
    2. Same—Statute construed.—Work done under an agreement with a subcontractor on a railroad to cut and manufacture a specified number of cross-ties, at a designated price, is not the work of a contractor, builder or material-man, in contemplation of the statute, but those performing it are laborers under a subcontractor, and, as such, entitled to the lien given by the statute above referred to. Such a lien is assignable and passes with the assignment of the account.
    3. Evidence—Open account.— To enforce such a lien, proof must be made that the labor was performed at the instance of the subcontractor, and “ that the wages are due.” Such an account is not admissible in evidence under a sworn statement as to its correctness as an “ open account,” within the meaning of art. 3206, R. S.
    Appeal from Williamson. Tried below before the Hon. A. S. Walker.
    W. M. Daniels brought his suit against the Austin & Northwestern Railroad Company, Sandford & Son, contractors, and G-. G-. Anderson, a subcontractor, to recover of Anderson, as subcontractor and the immediate employer of plaintiff and his assignors, and of Sandford & Son, a balance of $1,535.69 for the value of labor alleged to have been performed by plaintiff for Anderson in making twenty-one thousand nine hundred and nine cross-ties; also for a balance of $284.60 for labor alleged to have been performed by Smith & Lux for said Anderson in making, cutting and hauling cross-ties and chopping wood; and also for a balance of $212 for labor alleged to have been performed by one W. T. Carter for Anderson in hauling cross-ties, piling the same, and in cutting cord-wood. Plaintiff claimed to hold the Smith & Lux and Carter claims by assignment. Plaintiff sought personal, judgment against Anderson and Sandford & Son for the amount of the claims, and a foreclosure of the statutory lien against the railroad and its equipments of the Austin & Northwestern Railroad Company, under the provisions of the act of February 18, 1879.
    The defendant, the Austin & Northwestern Railroad Company, answered by demurrer, general and special, the general issue and a special answer.
    
      Sandford & Son filed general demurrer and general denial.
    Defendant Anderson made default.
    The case was tried before the court without a jury and resulted in a judgment in favor of plaintiff against Anderson for $2,202.27, with a foreclosure of the statutory lien against the Austin & Worth-western Railroad Company, with order of sale of its railroad, equipment, etc., to the extent of $2,167.78; also, judgment in favor of Sandford & Son against plaintiff for costs.
    The railway company alone appealed.
    
      Robertson & Williams, for appellant.
    No briefs on file for appellee.
   Walker, P. J. Com. App.

The first and second assignments of error are to the effect that the court erred in overruling the general demurrer and special exceptions of the defendant to the plaintiff’s petition.

Plaintiff alleged that on October 1,1881, appellant was constructing and operating its railroad through Williamson, Burnet and Travis counties; that the defendants Sandford & Son were the original contractors with said company in constructing, building, furnishing cross-ties, wood and other material in constructing the said road through said counties; that the defendant G. G. Anderson was a subcontractor under said Sandford & Son; that during the months of October, Wovember and December, 1881, and January and February, 1882, plaintiff, at the request of said Anderson, subcontractor, “ performed certain labor in the construction of the Austin & Worth western Railroad, to wit, in cutting and manufacturing twenty-one thousand nine hundred and nine cross-ties, which said labor was reasonably worth twelve and one-half (12 1-2) cents each cross-tie, amounting to the aggregate sum of $2,738.62 1-2; that he has been paid $1,202.93 on said amount, leaving a balance of $1,535.69.” Plaintiff then alleges that said Smith & Lux and said W. Y. Carter, during the same months, at the request of said Anderson, subcontractor, also performed certain labor in the construction and operation of said railroad, to wit, in manufacturing and hauling cross-ties, chopping and piling wood, piling cross-ties, etc., the balance claimed to be due Smith & Lux being $284.60, and to W. Y. Carter $212.

The plaintiff alleged that Smith & Lux and W. Y. Carter transferred to him for a valuable consideration their said claims, of which he is the legal holder and owner.

The special exceptions of appellant to the sufficiency of the petition are as follows:

“ 1. It states no cause of action against this defendant.

“2. The facts constituting plaintiff’s alleged cause of action are' not set forth with sufficient certainty.

“ 3. The facts averred, if true, do not create a lien upon the railroad, equipments, etc., of this defendant.

“4. Ño privity of contract between this defendant and plaintiff, or between this defendant and plaintiff’s alleged assignors, is shown.

“ 5. It does not appear therefrom that there is anything due and owing or to become due and owing from this defendant to said Sandford & Son under the alleged contract between it and them.

“ 6. Because under the allegations of said petition it appears that plaintiff is seeking to enforce against this defendant’s road-bed, etc., the lien of a contractor, builder or material-man when no such lien is given by law.

“ 7. Because, in its averments of fact, said petition is vague, indefinite, inconsistent and uncertain.

“ 8. Because it cannot be determined therefrom whether any labor has been expended, nor by whom, in the construction, repair or operation of this defendant’s railroad and railroad equipment.”

This action is based, so far as appellant is concerned, upon the act of February 18, 1879, entitled “ An act to protect mechanics, laborers and operators on railroads against the failure of owners, contractors and subcontractors or agents to pay their wages when due, and provide a lien for such wages.” Appendix, R. S., p. 4. Section 1 provides “ that all mechanics, laborers and operatives, who may have performed labor in the construction or repair of any railroad, locomotive, car or other equipment to a railroad; or who may have performed labor in the operating of a railroad, and to whom wages are due or owing, shall hereafter have a lien prior to all others, upon such railroad and its equipments for such wages as are unpaid.”

Section 2 provides that “in all suits for xvages due by a railroad company for such labor as heretofore mentioned, upon proof being satisfactorily made that such labor had been performed, either at the instance of said company, a contractor or subcontractor or agent of said company, and that such wages are due, and the lien given by this act is sought to be enforced, it shall be the duty of the court having jurisdiction to try the same, to render judgment for the amount of wages found to be due, and to adjudge and order said railroad and equipments, or so much thereof as may be necessary, to be sold to satisfy said judgment.”

Clearly, this statute creates by its express terms such privity between “ mechanics, laborers and operatives,” and the railroad company for whose benefit the labor contemplated, by the act is performed, as entitles the former to maintain an action directly against such company to enforce the lien which the statute gives therefor to the class of persons enumerated in the act.

It is urged as one of the grounds of exception, however, that the lien sought here to be enforced is that of a contractor, builder or material-man, and that no such lien is given by the statute in question.

We are of opinion that the contract set forth in the petition shows that the work performed by the plaintiff and his assignors was done neither as a contractor, builder nor material-man, but was the work of laborers who were employed and engaged by a subcontractor to perform and to do the work and labor set forth in the petition. The labor of manufacturing cross-ties at a specified price, for each cross-tie thus manufactured, or for their reasonable value, to be paid by the subcontractor, we think, is clearly the work of the laborer, and is not to be confounded with the fulfillment of a contract to furnish and deliver a certain quantity of cross-ties at an agreed rate of compensation, in the capacity of contractor. Those persons who engage in the manual labor of cutting, hewing and otherwise preparing the timber for suitable use as cross-ties, at the instance and request of the contractor or subcontractor, are the laborers who do that work, and we think the court did not err in thus treating the plaintiff’s claim for lien against the appellant.

The other specified exceptions to the petition are not, we think, well taken, and are not of a character to require any special discussion.

It is further contended by the appellant “that, if any laborer’s lien existed in favor of Smith & Lux and W. Y. Garter, such lien was a personal privilege of the laborer under the act of February 18,1879, and did not vest in plaintiff by assignment of the accounts. This question has been decided, and we think correctly, by the court of appeals (Tex. & St. Louis R. R. Co. v. Allen & Humphreys, W. & W. Rep., sec. 570), in the construction of this statute, holding that the lien is assignable, and passes with the assignment of the account. See, also, R’y Co. v. McMullen, id., p. 04.

The third, fifth and sixth assignments relate to the admission of evidence, and are as follows:

“3. The court erred in admitting said accounts and affidavits as set forth in defendant’s bill of exceptions as against the defendant G. G. Anderson, as well as against this defendant, because the claims sued on are not open accounts within the purview of article 2266, Revised Statutes.”

[Opinion adopted June 24, 1884.]

“ 5. The court erred in admitting said accounts and affidavits, as set forth in defendant’s bill of exceptions, as against this defendant, to establish the lien as claimed by plaintiff, because the alleged lien against this defendant is not an open account within the meaning of the statute, and because the evidence so admitted was inadmissible and incompetent to establish such statutory lien.

“ 6. The court erred in admitting said accounts and affidavits for any purpose over defendant’s objections as shown by said bill of exceptions.”

These assignments of error are well taken. The items of account relied on by the plaintiff, as constituting his cause of action, were not open accounts within the meaning of article 2266, Revised Statutes. The subject has been so fully expounded in recent cases that we deem it sufficient to refer to them as decisive in this case. The evidence objected to, and which was admitted, constituted all the evidence introduced to establish the accounts, and the judgment was predicated upon it.

It was essential, under section second of the act, in order to entitle the plaintiff to have the benefit of the lien claimed, to make satisfactory proof that the labor had been performed at the instance of the subcontractor, and “ that such wages are due.” The failure-to make such proof by competent and admissible evidence must have the effect to reverse the judgment and remand the cause. On the question involved as to what character of accounts are admissible under sworn statements as to their correctness, as “ open accounts ” within the meaning of article 2266, Revised Statutes, see McCammant v. Batsell, 1 Tex. Law Review, 337; Tex. & St. Louis R. R. Co. v. Smith, 2 Tex Law Review, 366; Murray v. McCarty, 3 Tex. Law Review, 94.

We conclude that the judgment ought to be reversed and the cause remanded.

Reversed and Remanded.  