(concurring).
The effect of this garnishment proceeding was to subrogate the garnishor Bank, the appellee here, to the rights of its debtor, Welch Construction, who, in turn, was the creditor of the garnishees, Moore and O’Grady. 26 Tex.Jur.2d 663, Garnishment, § 1. Moore and O’Grady properly implead-ed Marathon Metallic, the appellant here, a claimant to the garnished funds, in order to protect themselves against double liability. Thompson v. Fulton Bag & Cotton Mills, 155 Tex. 365, 286 S.W.2d 411, 414 (1956). As between these contesting parties, I agree with the majority that Marathon Metallics substantially complied with the mechanic and materialmen’s lien statutes and thereby trapped the amount of the funds it claims in the garnishees’ hands before the Bank’s writ of garnishment was served.
The material facts are without dispute. At all relevant times, Moore and O’Grady owned the land in question. They purchased the property on August 17, Í972 from O’Grady Containers, Inc. Moore is vice-president and a stockholder of O’Grady Containers, Inc., and is also general manager of its Waco plant. O’Grady is president and a stockholder of the company. He lives in Fort Worth. O’Grady Containers, Inc. is their tenant. On February 25,1974, a written contract in the name of O’Grady Containers, Inc., was made with Welch Construction for improvements to the land for the total price of $38,602.00. The contract was signed and “approved” by Moore. Marathon was Welch’s major materialman for the job, and supplied materials totaling $20,583.89 in price. Moore and O’Grady paid all draws on the contract by Welch. Complying with Article 5469, Vernon’s Ann. Tex.Civ.St., Moore and O’Grady withheld $3,860.00, being 10% of the contract price, from Welch Construction. These are the funds in issue. Seeking to comply with Articles 5452 et seq., and to thereby secure its lien as a materialman, Marathon treated O’Grady Containers, Inc., as the owner or reputed owner. The affidavit Marathon filed to comply with Article 5455, which calls for the name of “the owner or reputed owner, if known,” listed O’Grady Containers, Inc., as the owner or reputed owner; and the notices to the owner called for in para. 2b(l) of Article 5453 were sent by it to O’Grady Containers, Inc.
It is settled that a mechanic or material-man must substantially comply with the statutes in question in order to perfect the lien provided. But he need not literally comply. “Substantial compliance” therewith has been met if the object sought thereby — the protection of a right or the conferring of a benefit — has been as fully attained as though there had been literal compliance. “This compliance is especially sufficient where no one has been misled to his prejudice.” Hunt Developers, Inc. v. Western Steel Company (Tex.Civ.App.— Corpus Christi, 1966, no writ hist.) 409 S.W.2d 443, 449. Whether or not there has been substantial compliance must necessarily turn on a consideration of all the facts and circumstances of the particular case; and no hard and fast rules can be laid down for a resolution of the question. Accordingly, I am convinced the question is one of law for the court, and not one of fact as alterna*749tively determined and found by the majority-
Here, Moore and O’Grady withheld funds from Welch under Article 5469. Within the context of our facts, this was done to protect Moore and O’Grady, the owners; Welch Construction, the original contractor; and Marathon, and the other subcontractors. Although Marathon listed O’Grady Containers, Inc., as the owner or reputed owner of the property in its affidavit and mailed the required notices to the corporation, the record shows that Moore and O’Grady received notice of Marathon’s claim, knew what it was for, and knew it was against their property; that Welch Construction knew full-well the validity of the claim; and that no one for whose benefit the statutes were enacted has been surprised or misled or harmed, whether or not Marathon’s attempt at compliance be less than literal compliance with some, all, or none of the relevant statutes. I am convinced there was sufficient compliance under the circumstances to perfect an enforceable materialman’s lien in favor of Marathon against Moore and O’Grady. This is especially so in the light of the rule that the primary object of these statutes is to secure and protect laborers and materialmen. See, First National Bank In Dallas v. Whirlpool Corp., 517 S.W.2d 262, 269 (Tex.Sup., 1974). Unlike the majority, I do not believe this question rests in this particular case on whether O’Grady Containers, Inc., was in fact a reputed owner of the property.
The appellant asserts that the failure of Marathon to attempt any compliance with Article 5454 was fatal to its lien. By its express terms,, Article 5454 is applicable only when the owner withholds funds pursuant to the provisions of Article 5463. In our case, Moore and O’Grady retained funds under the authority of Article 5469. Article 5454 has no application.
For these reasons, I concur in the modification of the judgment set forth in the majority opinion.