WILSON et al. v. SHERWIN-WILLIAMS PAINT CO., 217 S.W. 372

GREENWOOD, J. This case calls for a determination of the legal effect of notice to an owner, under

article 5623, R. S., of a claim for material furnished a subcontractor, given when the owner was indebted to the, cpntractor in an amount in excess of the claim, and followed by the filing and recording of proper account within 90 days from the date of furnishing the last item on material, where the contractor, after the material was furnished and before notice' was served on the owner, had settled in full with the subcontractor.

The judgments' of the district court and of the Court of Civil Appeals give to such a notice the effect of requiring the owner to withhold for the -materialman the amount of his claim, and of establishing a lien, for such amount, against the owner’s property.

The contractor qnd owner in this case attack such judgments upon the ground that it is essential to compliance with the statutes for the enforcement of a materialman’s lien that notice be given of each item of material as it is furnished, and that, where there has been delay in giving notice until the contractor has paid off the subcontractor, the materialman should be denied any remedy against the owner or his property, because such delay would otherwise operate to the contractor’s injury.

We do not believe that this attack on these judgments can be sustained under the settled or right construction of the statutes. In Johnson v. Amarillo Improvement Co., 88 Tex. 512, 31 S.

W. 503, 506, the court said: “The object of the act in requiring notice to be given to the owner of each ‘item as it is fuinished’ was to advise him as to the lien, and thereby to enable him to save himself from loss, by withholding from any amount which might be due to the contractors a sufficient sum to discharge it; and it may be that should a materialman fail to give immediate notice of any material furnished, and should the owner pay out all that is due to the contractor under the contract; the lien would be lost.

But where there has been delay in giving the notice, and the owner has not been prejudiced thereby, we see no reason why the lien should be discharged. To so construe the provision would cause it to impose an unreasonable and unjust restriction upon a right given absolutely by the fundamental law. Such a construction is not to be tolerated.” ' In answering certified questions, it was declared in Padgitt v. Construction Co., 92 Tex. 629, 50 S.

W. 1012: “If material has been furnished to a subcontractor and the law has been complied with so that a lien is fixed upon the property,- and the owner owes to the original contractor a sufficient amount of the contract price to settle the claim, the property may be subjected to its payment, although the contractor may have paid to the subcontractor more than the latter was entitled to receive.” The statutes embody the just conception that the rights of the contractor are inferior to those of the materialman.' The duty to furnish and pay for the material is primarily imposed on the contractor by the ordinary building contract, such as that here involved.

The contractor selects the subcontractor. If loss must fall on material-man, owner, or contractor, by reason of the default of one chosen by the contractor t<^ perform his obligation, and of one whose acts are, or ought to be, directly under the contractor’s supervision, surely the loss ought to fall on the contractor. Such is the just operation of our statutes, 'as heretofore construed, and we do not think that the contractor has any just ground to complain of the relief awarded - the materialman under the facts of this case.

By withholding from the contractor the amount due the material-man, as authorized by the statute, the owner sustains no loss. To make the right of the materialman depend on the state of the accounts between contractor and subcontractor, at the date of service of written notice on the owner, would be to deprive him of substantial and certain benefits. which the statutes are designed to provide. There was ho error in the personal judgments against the owner and contractor. As said in Fullenwider v. Longmoor, 73 Tex. 480, 11 S.

W. 500: ■ “From the time of the service of the notice upon the owner of the property he can make no further payment to the ‘contractor without incurring liability for the lien debt, if proper steps shall he taken to establish it, to the extent of his indebtedness under the contract when the notice is served.” ■ In reaffirming the rule stated, it was said in the opinion of the court by Judge Brown in 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, that the proceeding prescribed by the statutes in behalf of the materialman has the effect of a writ of garnishment. A garnishee cannot pay over the garnished fund to the creditor originally entitled thereto, without becoming personally liable to the garnishing creditor, and we are but enforcing the full statutory obligation of the owner when we hold him personally responsible for moneys to which the materialman Snd not the contractor was entitled, but which the owner has withheld from the material-man and paid the contractor.

The statutes, when complied with, have substantially the same effect as a transfer of the obligation of the owner by the contractor to the material-man to the extent required to pay the account for the material. Because the money paid over to the contractor and converted by him to his own usé and benefit was money lawfully impounded by the materialman, and to which he had the superior claim, we think it clear that the contractor also became liable therefor to the materialman.

It follows that the'judgment of the Court of Civil Appeals, which gave the material-man a personal judgment against the owner find contractor, with foreclosure of the statutory lien, should be affirmed, and it is so ordered. <@=s>For other cases see same topic ai^d KEY-NUMBER in all Key-Numbered Digests and Indexes ©cssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes