(after stating the facts as above). The assignments predicate error in adjudging and foreclosing a lien upon the spur track. As the claims of the two defendants in error are separate, they.are here passed on separately. As to the claim of Bourgeois, the jury found that the items that made up his account were the hire of eight teams and tools for 44 days at $1 per day, filling washout, $100, clearing five acres of land of right of way, $150, and moving with teams and tools 6,000 yards of dirt at 12 cents per yard and 1,000 yards of rock at 70 cents per yard, aggregating $1,420. The jury found that the total amount paid Bourgeois by the contractors was $1,092.58, and that the total amount still due and owing at the completion of the work was $1,049.42. The court foreclosed the lien for the full amount of the balance found due. The point made is that, as to the account of Bourgeois for grading and clearing the right of way, the evidence admittedly shows that most of the work was done through hired hands, and some by Bourgeois personally, but the evidence fails to show how much labor was performed by him, and therefore he has not shown that the statutory lien embraced all the items of this portion of the account. The grading account appears in a lump sum, earned by the use of teams, tools, and labor. The precise amount earned and for which wages are owing from each source does not appear. So we must take the record as merely showing a gross amount earned by means of the use of teams, tools, and labor. The clearing was done by labor. It appears that the hired hands were all paid off.
[1-3] For so much as was earned by his own employes, Bourgeois himself had no lien. Railway v. Davis, 37 Tex. Civ. App. 342, 83 S. W. 883; Krakauer v. Locke, 6 Tex. Civ. App. 446, 25 S. W. 700; Parks v. Locke, 25 S. W. 702. Under the facts of this record, he may have a lien for the work done by his teams and tools, because the work was done by him by his teams and tools. The jury were expressly asked to give answer if Bourgeois personally performed any actual labor or work, either on mile 3 or mile 4. This question included work of grading and cleaning. They answered, as to mile 3, “He did some grading, but we cannot say how much.” As to mile 4, the jury answered, “We agree that Bourgeois did some actual labor, but cannot say how much.” It is admitted that most of the work was actually performed by hired men. It only appears in the evidence, as found by the jury, that Bourgeois did some work himself. So, assuming, as we must, that he 'did some work, the amount or value of the time as wages to him could not •be arrived at by any process of deduction, because the record does not show what this was. For merely overseeing the work of his hired men, if he did, out of whose work he was realizing a profit under a contract with the contractors, and himself not actually performing labor of some kind in some way, he would not be entitled to a lien. He would be under such circumstances, and to that extent at least, classed simply a subcontractor, and not a laborer. Railway Co. v. Foley, 30 Tex. Civ. App. 129, 69 S. W. 1030. It is wages for personal labor that the statutes protect by lien. By the judgment as entered,
Defendant in error Sharp sued for $391.77. The jury found that the items that made up his account, and upon which he asserted a lien, were $30 for work done on mile 6, $46.50 for cleaning and grubbing the right of way on mile 5, $4 for erecting the header bank of mile 5, $13.50 for hauling ties, $20 for cutting a ditch, $1 for extra labor done, and $469.44 for moving 3,912 yards of dirt. The evidence shows that the work was done by means of teams, tools, and labor. Sharp had two teams, one of which was driven by him, and the other by a hired hand. He also used on the grading a hired team. Hired help was also used in cutting the ditch and constructing the header bank, and in clearing and grubbing the right of way. Sharp himself labored in the work. His statement is un-contradicted that “I worked every day it was fit.” The jury found that the total amount paid Sharp by the contractors was $219.57, and that the balance was owing. Sharp testified that the total amount of all the hired help used by him was $96.43, and that out of the money paid him by the contractors he fully discharged this indebtedness. The amount of this hired help is not in the amount claimed for a lien. The jury found that Sharp had paid the labor claim. Sharp also testified that he credited a claim of $26.80 due to him by the contractors out of the money paid him by - the contractors. So by the record it must be said that the claim of Sharp as sued on, and for which a lien was allowed, represents his personal labor, and the labor of his teams and use of tools on the spur track. The assignments claiming that Sharp has not shown himself entitled to a laborer’s lien under article 3312, R. S., and for the amount awarded, cannot therefore be sustained.
[4] It is contended that the court erred in rendering judgment foreclosing a lien, for the reason that the railway company had no notice, at the time it made final settlement with the original contractors, that the contractors owed defendants in error. It is in evidence that the engineer of the railway company knew these defendants in error had labored with teams and tools in the construction of the spur. The lien given by the statute remains in force one year from the creation thereof, and no notice is required to keep such liens in force. The lien would not be defeated because the laborer did not give notice to the railway company of bis claim against the contractors before the company settled with the contractors.
The judgment as to Bourgeois is reversed, and his cause remanded, and the judgment in favor of Sharp is affirmed. Tbe judgment against Read Bros. & Montgomery, not being appealed from, will remain undisturbed.