LECOUNTOUR BROS. STAIR MFG. CO. v. LYON-GRAY LUMBER CO. et al., 217 S.W. 136

GREENWOOD, J. Plaintiff in error sought to recover of the First National Bank of Paris the amount owing to it for materials furnished for a building constructed for the Bank by Jno. T. Finn, contractor, and to foreclose a lien for said amount on the building and appurtenant lots. The district court denied plaintiff in error a recovery because it did not appear that the bank owed the contractor any sum of money at or subsequent to the date of service of notice of plaintiff in error’s claim, it appearing that no payments were made to the contractor after service of such notice.

The district court’s conclusions of fact show that the contract between the bank and contractor Finn authorized the bank to retain 20 per cent, of the amount of labor and material going into the building, as estimated by the architect, until its completion, and that prior to the service of notice of plaintiff in error’s claim the bank and the contractor agreed for the bank to use part of this reserve fund to pay for labor and material required to complete the building, and the bank made certain payments for such labor and material subsequent to tile receipt of notice of plaintiff in error’s account.

It further appears, from the conclusions of fact, that plaintiff in error failed to file any account in tlie office of the county clerk, and the Court of Civil Appeals held that such failure precluded the award to plaintiff in error of any relief sought by it against the bank or its property. The holding of the Court, of Civil Appeals was correct. We have stated our reasons for this conclusion in considering the claim of the Ingram Mill Work Company for materials furnished to contractor Finn for the Bank’s building in the case of the First National Bank of Paris, Tex., et al. v.

Lyon-Gray Lumber Co. et al., 217 S. W. 133, and refer to our opinion this day filed in that case, without restating our views. We are also of the opinion that the conclusion of the district court was correct on the finding that the facts fail to show an indebtedness from the owner to the contractor at any time after the service of notice of plaintiff in error’s claim, such as was requisite to warrant holding that the bank became liable to plaintiff in error, or that plaintiff in error was entitled to enforce any lien on the bank’s property.

What we said in the opinion above referred to* in considering the claims of the Texas Glass & Paint Company and others, is decisive on this point. It follows that the judgment of the Court of Civil Appeals was correct, and it is affirmed.