
    HAYDEN et al. v. TYLER OIL CORPORATION.
    (No. 2992.)
    Court of Civil Appeals of Texas. Amarillo.
    April 18, 1928.
    Rehearing Denied May 30, 1928.
    1. Mechanics’ liens <§=>118 — Giving ten days’ notice before filing lien is condition precedent to claimants’ right to enforce laborers’ lien against property (,Rev. St. 1925, art. 5461).
    Compliance with Rev. St. 1923, art. 5461, requiring laborers to give ten days’ notice in writing of their claim before filing lien, is condition precedent to claimants’ right to enforce laborers’ lien against property.
    2. Mines and minerals <§=»! 14 — Where affidavit to accounts for labor were made out against oil lease owner while testimony showed plaintiffs were employed by independent contractor, no valid laborers’ lien existed.
    Where affidavit to accounts for labor done were made out against defendant oil company owning an oil and gas lease while testimony of claimants themselves showed that they were employed and worked for an independent contractor employed to drill for oil, and affidavit to accounts stated that labor was performed for oü company, no valid laborers’ lien existed.
    Error from District Court, Hutchinson County; Newton P. Willis, Judge.
    Action by V. W. Hayden and another against the Tyler Oil Corporation. Judgment for defendant, and plaintiffs bring error.
    Affirmed.
    Lackey & Lackey and Jos. H. Aynesworth, all of Stinnett, for plaintiffs in error.
    W. T. Brothers, of Amarillo, for defendant in error.
   HALL, O. J.

The Tyler Oil Corporation owned an oil and gas lease in Hutchinson county, Tex. It entered into a written contract with Kay-Bee Company, a partnership composed of M. M. Keating and Prank C. Brown, to drill for oil upon the property covered by its lease. Under the terms of the written drilling contract, the members of the Kay-Bee Company are independent contractors, obligated, to drill the well, furnish the derrick, all drilling tools, and to hire and pay their own hands in the prosecution of the work.

V. W. Hayden and Ed Harris, plaintiffs in error, Bert Hammett, and C. B. Hudson were employed by the Kay-Bee Company as laborers in the execution of the drilling contract. According to the allegations of the petition, Hammett and Hudson transferred to plaintiffs in error their claims for labor performed by them. These four laborers were engaged in, the construction of a derrick, two bunkhouses,-and the digging of a slush pit upon the leased property. The total of the four labor bills, as shown by the petition, is $770.

This suit is by Hayden and Harris to recover that sum and to foreclose the laborer’s lien upon the derrick, bunkhouses and property upon which these improvements are situated.

The answer of the defendant company contained a general demurrer and special exceptions, general denial, and special answers. One special defense was that the defendant in error was not given ten days’ written notice of the laborer’s lien, and that the petition did not show that the proper steps’had been taken for fixing the lien.

The case was tried to the court without a jury, and resulted in a judgment that plaintiffs take nothing.

The testimony is uneontradicted that plaintiffs and their assignors had been employed to do the work by one “Slim” Matthews, and a McG-ovney, who represented the Kay-Bee partnership. It appears that the Kay-Bee Company defaulted in the performance of its part of the contract, and failed to pay its employees.

The improvements were placed upon the leased premises by plaintiffs in error and their assignors during that period, beginning December 13, 1926, and ending the 23d of said month, and it appears that, after they had completed the work, they endeavored to find the partners composing the Kay-Bee firm in order to collect the amounts due them for their services. They found J. L. Tyler, the president of the appeUee company, who informed them where they might find Keating and Brown. After they had consulted Keat-ing and Brown, and found they were not going to succeed in collecting the amounts due them from the partnership, they then talked with Mr. Tyler in an effort to get their money from him or from his company. Failing in this, on the 12th day of January, 1927, they filed their laborer’s lien, including all four accounts for services, and at the same time mailed a notice or duplicate of their claim to J. L. Tyler at Amarillo. Both of the plaintiffs in error and their assignors testified that they had not been employed by the defendant company, but had been employed and worked for the Kay-Bee Company. No facts are alleged or proven which would have authorized the trial court to render a judgment against defendant for an amount due them from the Kay-Bee Company.

Under Revised Statutes 1925, article 5461, plaintiffs in error were required to give the defendant oil company ten days’ notice in writing of their claim before filing their lien. This was not done. Compliance with this provision of the statute is a condition precedent to the claimants’ right to enforce a lien against the property. McClellan v. Haley (Tex. Com. App.) 250 S. W. 413; Burk Burnett-Mann Oil Co. v. Robertson (Tex. Civ. App.) 240 S. W. 1046; Huffman v. McDonald (Tex. Civ. App.) 261 S. W. 146; Atkinson v. Jackson Brothers (Tex. Civ. App.) 259 S. W. 280.

Por this reason alone, we think the judgment should be affirmed. It may be further stated, however, in support of the judgment, that the accounts for labor done were made out against the defendant oil company, while the testimony of the claimants themselves Shows that they were employed by and worked for the Kay-Bee Company. The affidavit to the' accounts states that the labor was performed for the Tyler Oil Corporation, and this statement is contradicted' by the testimony of the parties upon the stand. Under these facts, it is clear that no valid lien existed.

It is unnecessary to discuss in detail the various propositions urged by plaintiffs in error.

The controversy has been correctly decided, and the judgment is affirmed. 
      <§=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     