The Reliance Brick Company filed this suit in the district court of Lubbock county, against the Whaley Lumber Company and John Scott, to recover the value of certain brick sold by the plaintiff to said Scott and in turn sold by Scott to the defendant Whaley Lumber Company. Judgment for plaintiff against defendant Whaley Lumber Company and in favor of Whaley Lumber Company against Scott. From this judgment, appeal has been taken to this court by the Whaley Lumber Company.
The Reliance Brick Company, in its petition, alleges that it had sold defendant John Scott 22,000 brick and 5,000 hollow tile to construct one or more dwelling houses on certain lots in the town of Lubbock; that Whaley Lumber Company had notice, at the time of the sale and delivery of same to Scott, that Scott had not paid for them; that at the date of the sale, and at all times since, plaintiff had a constitutional materialman's lien against said brick and tile on said lots, to secure the unpaid purchase money owing for same; that Whaley Lumber Company, without plaintiff's consent, took possession of the brick and tile and moved same off the lot and thereby converted them to its own use; that defendant Scott received said brick and tile and placed them on said lots to be used in the erection of buildings thereon, and that said buildings were never erected; that about August 1, 1925, or prior thereto, Scott told the representatives of plaintiff that the buildings could not be completed and thereupon sold and transferred said brick and tile to the plaintiff in satisfaction of his debt to plaintiff; that, having no place to store the brick, they were left on the lots with the consent of John Scott, from which they were moved by Whaley Lumber Company shortly after August 18, 1925. The prayer of the petition was for recovery of its debt, interest, and costs of suit, a foreclosure of its lien, and for general and special relief.
Defendant Scott answered and admitted that he had never paid for the brick; that he owed the plaintiff as alleged; that Whaley Lumber Company had full knowledge of all the facts with reference to the purchase of the brick; and that they had not been paid for and knew that the plaintiff was claiming a lien on them. Further, Scott alleged that, in the purchase of the *Page 915 brick from the plaintiff for the purpose of the erection of a certain house on said lot owned by him, it was agreed that the plaintiff was to have a materialman's lien on the house and lot to secure the payment of the account for the brick and tile; that, at the time of the purchase of the brick from the plaintiff, Scott was arranging a loan to pay for same and other materials to be used in the construction of such house, and that the defendant Whaley Lumber Company agreed to finance and pay for all the brick and building material to be used in such construction, and that, when said brick were placed upon the lots, it was understood that they were to be used in such construction; that, for some reason, the loan was not consummated, and the defendant Whaley Lumber Company failed and refused to perform its agreement to furnish the brick and material for said house, and said defendant, without the knowledge and consent of defendant Scott, removed the brick from said lots and appropriated them to its own use and benefit.
The Whaley Lumber Company answered, claiming the brick by reason of purchase in good faith for a valuable consideration, without notice, from Scott, having paid him the sum of $1,379.05, the said sum being represented by a pre-existing debt owed to it by Scott; that, in the event it is mistaken in this, then it has a first lien thereon to the extent of $382.40, for demurrage and freight, paid by it in order that the brick would be delivered to Scott by the railroad company.
Defendant Whaley Lumber Company also filed an answer to Scott's cross-action, setting up in detail its matters of defense, and praying for judgment over against Scott in the event of recovery by plaintiff against it.
While the pleadings of the parties set out that the brick in question were to be used for the purpose of erecting a "dwelling house" and "a house or houses" on the lots, the pleadings nowhere allege that the building being erected was the homestead of defendant Scott.
The trial court submitted the following special issues to the jury:
"Special issue No. 1: Did A. A. Boggess know that the brick in question were purchased to go into the buildings on lots Nos. 11 and 12, block 2? Answer yes or no. Answer: Yes.
"Special issue No. 2: Did A. A. Boggess know that these brick were not paid for at the time Whaley Lumber Company took possession of said brick? Answer yes or no. Answer: Yes.
"Special issue No. 3: Did John Scott turn the brick in question back to F. B. Caylor for the Reliance Brick Company? Answer yes or no. Answer: Yes.
"If you answer special issue No. 3 in the negative, you need not answer special issue Nos. 4 and 5. If your answer to No. 3 is in the affirmative, please answer the following special issues:
"Special issue No. 4: Based on your answer to special issue No. 3, were the brick turned back prior to the time Whaley Lumber Company bought same from John Scott? Answer yes or no. Answer: Yes.
"Special issue No. 5: Based on your answer to special issue No. 3, were same turned back in satisfaction of the debt of the Reliance Brick Company? Answer yes or no. Answer: Yes.
"Special issue No. 6: Did J. L. Scott abandon lot No. 11, block 2, as a homestead before Whaley Lumber Company took possession of the brick? Answer: Yes.
"You are the exclusive judges of the facts proven, of the credibility of the witnesses and of the weight to be given to their testimony."
Appellant presents a number of propositions and assignments that we do not think it necessary to discuss in this opinion — only discussing those that control the disposition of the case.
Defendant Scott bought the brick from the Reliance Brick Company on open order, and was therefore indebted to the plaintiff in open account. He executed no writing, but simply gave a verbal order, and same was charged to his personal credit.
There was no constitutional lien upon the material thus furnished Scott. The evidence discloses that John Scott, the defendant, was the owner of the lot upon which the brick he purchased from the plaintiff were to be used in the construction of a dwelling house, and, it not having been pleaded that such building was the homestead of Scott, if the building had been erected, plaintiff would then have had a constitutional lien upon same to secure the debt created by its furnishing the brick and tile which entered into such construction. This lien would have been solely by virtue of the provision in section 37, art. 16, of the Constitution of Texas, and without the necessity of filing the affidavit and bill of particulars provided in the statutes, and without the execution of any written contract. Howell v. McMurry Lumber Co.,62 Tex. Civ. App. 584, 132 S.W. 848; Strang v. Pray, 89 Tex. 525,35 S.W. 1055; F. M. National Bank v. Taylor, 91 Tex. 78, 40 S.W. 876,966; De Bruin v. Santo Domingo Land Irrigation Co. (Tex.Civ.App.)194 S.W. 654; Wichita Falls Sash Door Co. v. Jackson (Tex.Civ.App.)203 S.W. 100, 101; McBride v. Beakley (Tex.Civ.App.) 203 S.W. 1137; Atkinson v. Jackson Pros. (Tex.Civ.App.) 259 S.W. 280; Lyon-Gray Lumber Co. v. Noachian Cotton Oil Co. (Tex.Civ.App.) 194 S.W. 633.
It being true that the Constitution is self-executing, in providing a lien in a proper case, as above discussed, the next question is upon what property does such lien become effective? In this case, appellee claims a lien upon the brick and tile which were placed upon the lots but were never carried into the building. The further question then is, Does the constitutional lien come into existence and become effective upon the material purchased at the time it was placed on *Page 916 the lot when the evidence discloses that the material never was used in the construction of the building?
Section 37, art. 16, of our state Constitution, is as follows:
"Mechanics, artisans and materialmen, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens."
There is no lien provided by the Constitution upon the material, as such, but the lien is created only when same enters into the construction of the building, and it rests only on the building. In our view, when the materialman sells a bill of material to an owner of land, without a written contract, providing for the reservation of a lien, he sells it on open account and his debt is against the owner personally until such time as the material is placed beyond his reach by the owner of the lot using same in the construction of a building, and it is only then that the constitutional lien, under such circumstances, takes effect. The language of this article clearly indicates that such lien is limited to thebuilding.
It is held in the case of Murphy v. Fleetford, 30 Tex. Civ. App. 487,70 S.W. 989-990, that the lien was not on the material sold, but was only on the building, to the extent of the material that went into that building.
The lien granted by the Constitution is justified upon the ground that the material for which the lien is sold has been converted into the building. Hess v. Denman Lumber Co. (Tex.Civ.App.) 218 S.W. 162, 164 (writ denied).
Where a building has been erected and materials used which have been purchased from a materialman, such lien is only on the building and not on the real estate upon which the building is situated. Sommerville v. King, 98 Tex. 332, 83 S.W. 681.
The courts having given such construction to the language of the statute, with reference to the creation of the lien, by analogy, the lien created by the Constitution reaches no further.
The plaintiff having no lien, constitutional or otherwise, the next question for our consideration is, Was there a resale of the material by defendant Scott to the plaintiff, and had title to the brick and tile revested in the plaintiff at the time the defendant Whaley Lumber Company took possession of the same, or at the time of the execution of the bill of sale by defendant Scott conveying the brick and tile to Whaley Lumber Company?
The language used by Scott, in giving to plaintiff whatever right he is entitled to assert here, is testified to by Caylor, plaintiff's manager. According to his testimony:
Scott's statement at the time was for him to "take the material and sell it at any time, sell it for the charges at any time. So I left them on the lots, trying to find some one to buy them, and had not found any one until I discovered the brick and tile had been moved. I did not have any place to move the material. I did not have any yard here or storage for bricks. The reason I left that material there, after Mr. Scott told me I could have it back in payment of the debt, was because I didn't have any place to put them and didn't want to pay an extra drayage charge on them."
It is a fundamental rule that the minds of the parties must meet to constitute a sale. Whether a bargain between parties is a contract to sell or an actual sale depends upon whether the property in the material is transferred. 1 Williston on Sales, p. 3, § 2. This is as between the parties.
"In the formation of a bargain, intention of the parties does not mean secret intention, nor generally even intention manifested to third persons, but only the intention manifested to the other party. If the offeror Understood `the transaction to be different from that which his words plainly expressed, it is immaterial, as his obligation must be measured by his overt acts."' 1 Williston on Sales, p. 5, § 5.
The plaintiff states what Scott told him, which was that he should have authority to sell the brick and apply them to his account, but, in referring to what Scott had done, he gives us his own conclusion, in referring to the fact that he had left them there "after Mr. Scott told me I could have it back in payment of the debt." This was clearly his conclusion at the time of his testimony. The plaintiff clearly understood that the authority given him was to sell the brick and tile. This is manifest in his trying to find a purchaser for them.
Where cotton was delivered to a gin, and, while there, was levied on by a creditor, and was claimed by another creditor by virtue of an alleged sale of same to him prior to the levy, the Supreme Court held:
"While the cotton was undergoing the process of ginning and baling, under the bailment of the ginner, the general property was in the producer, and there was a special property in the ginner. In this condition its destruction or loss by some inevitable casualty or accident would have been sustained by the producer, and not by the creditor, who, in this case, was only created a factor, or agent of the purchaser, to sell the cotton, and, when sold, to appropriate the proceeds to the liquidation of his debt, or so much thereof as the proceeds might be sufficient to extinguish." Morgan v. Taylor, 32 Tex. 363-367.
In the absence of a lien securing the debt of plaintiff, and in the absence of a sale to it of the brick and tile, the fact that the brick and tile were purchased of plaintiff to go into the building, and were not paid for, became immaterial.
The jury does not find that the brick and tile were sold by Scott to the plaintiff, but *Page 917 only that they were turned back by Scott to the plaintiff. There is no question but what Scott did authorize the plaintiff to sell the brick and tile and the jury's finding is evidently based on this and not on a sale. However, if it is claimed that such finding does mean that the jury found there was a sale, the evidence wholly fails to sustain such finding.
There is another ground which, under our view of the case, absolutely precludes the plaintiff's recovery herein. While the jury finds that the defendant Whaley Lumber Company knew that the brick had not been paid for, there was no issue submitted to them as to whether or not they knew that the plaintiff was claiming to have repurchased the brick and tile. In the absence of such finding by the jury, it will ordinarily be presumed that the trial court made such finding to support his judgment, if the evidence authorized such finding. The evidence does not furnish any basis to charge the defendant Whaley Lumber Company with notice that the plaintiff was claiming title to the brick and tile by virtue of purchase from Scott. On the contrary, the evidence clearly shows that the defendant Whaley Lumber Company was ignorant of any such claim. Consequently, there can be no presumption based on the evidence to support said judgment of the trial court.
The above opinion was prepared by me as the opinion of the court — the case having been assigned to me. My associates having failed to agree on my conclusions and having rendered the judgment of this court, I respectfully dissent to the opinion rendered by them, and file this original opinion as my reasons for dissent to the disposition made of the case by the majority.