Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 70
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70 A. & N. W. R'Y Co. v. DANIELS. [Austin Term,
Statement of the case.
AUSTIN & N. W. R'Y Co . v . W. M. DANIELS.
(Case No. 5014.)
1. LIEN OF LABORERS ON RAILWAY - STATUTE CONSTRUED.- The act of February
18, 1879 (R. S., Appendix, p. 4, sec. 1), creates such privity between
mechanics, laborers and operatives and a railway company, for whose benefit
the labor contemplated by the act is performed, as entitles the former to
maintain an action directly against such company to enforce the lien which
the statute gives for their benefit.
,2. SAME-- STATUTE CONSTRUED.--Work done under an agreement with a subcontractor
on a railroad to cut and manufacture a specified number of crossties,
at a designated price, is not the work of a contractor, builder or
' material-man, in contemplation of the statute, but those performing it are
laborers under a subcontractor, and, as such, entitled to the lien given by
the statute above referred to. Such a lien is assignable and passes with the
assignment of the account.
3. EVIDENCE--OPEN ACCOUNT.- To enforce such a lien, proof must be made
that the labor was performed at the instance of the subcontractor, and
" that the wages are due." Such an account is not admissible in evidence
under a sworn statement as to its correctness as an " open account," within
the meaning of art. 2266, R. S.
APPEAL from Williamson. Tried below before the Hon. A. S.
W. M. Daniels brought his suit against the Austin & Northwestern
Railroad Company, Sandford & Son, contractors, and G. G.
Anderson, a subcontractor, to recover of Anderson, as subcontractor
and the immediate employer of plaintiff an ainr and his assi rs, an
of Sandford & Son, a balance of $1,535.69 for the value of labor
alleged to have been performed by plaintiff for Anderson in making
twenty-one thousand nine hundred and nine cross-ties; also for a
balance of $284.60 for labor alleged to have been performed by
Smith & Lux for said Anderson in making, cutting and hauling
cross-ties and chopping wood; and also for a balance of $212 for
labor alleged to have been performed by one W. Y. Carter for
Anderson in hauling cross-ties, piling the same, and in cutting cordwood.
Plaintiff claimed to hold the Smith & Lux and Carter
claims by assignment. Plaintiff sought personal judgment against
Anderson and Sandford & Son for the amount of the claims, and a
foreclosure of the statutory lien against the railroad and its equipments
of the Austin & Northwestern Railroad Company, under the
provisions of the act of February 18, 1879.
The defendant, the Austin & Northwestern Railroad Company,
answered by demurrer, general and special, the general issue and a
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth28512/m1/92/: accessed August 21, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .