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: 73
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1884.. A. & N.. W. Ia'Y Co. v. DANIELS. 73
Opinion of the court.
Clearly, this statute creates by its express terms such privity between
"mechanics, laborers and operatives," and the railroad coinpany
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
therefor to the class of persons enumerated in the act.
It is urged as one of the grounds of exception, however, that the
lien sought here to be enforced is that of a contractor, builder or
Inaterial-man, and that no such lien is given by the statute in question.
We are of opinion that the contract set forth in the petition shows
that the work performed by the plaintiff and his assignors was done
neither as a contractor, builder nor material-man, but was the work
of laborers who were employed and engaged by a subcontractor to
perform and to do the work and labor set forth in the petition. The
labor of manufacturing cross-ties at a specified price, for each crosstie
thus manufactured, or for their reasonable value, to be paid by
the subcontractor, we think, is clearly the work of the laborer, and
is not to be confounded with the fulfillment of a contract to furnish
and deliver a certain quantity of cross-ties at an agreed rate of compensation,
in the capacity of contractor. Those persons who engage
in the manual labor of cutting, hewing and otherwise preparing
the timber for suitable use as cross-ties, at the instance and request
of the contractor or subcontractor, are the laborers who do that
work, and we think the court did not err in thus treating the
plaintiff's claim for lien against the appellant.
The other specified exceptions to the petition are not, we think,
well taken, and are not of a character to require any special discussion.
It is further contended by the appellant "that, if any laborer's
lien existed in favor of Smith & Lux and, W. Y. Carter, such lien
was a personal privilege of the laborer under the act of February
18, 1879, and did not vest in plaintiff by assignment of the accounts.
This question has been decided, and we think correctly, by the court
of appeals (Tex. & St. Louis . It. Co. v. Allen & Humphreys, W. &
W. Rep., sec. 570), in the construction of this statute, holding that
the lien is assignable, and passes with the assignment of the account.
See, also, R'y Co. v. McMullen, id., p. 64.
The third, fifth and sixth assignments relate to the admission of
evidence, and are as follows:
"3. The court erred in admitting said accounts and affidavits as
set forth in defendant's bill of exceptions as against the defendant
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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/m1/95/: accessed January 18, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .