Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 172
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172 GAMMAGE v. MOORE. [Tyler Term,
Opinion of the court.
exhibit of his as the building contract referred to in the
plaintiff's petition, and as it is dated after the passage of
the last law on the subject of mechanics' lien, which went
into operation on the 17th day of November, 1871, it is
contended that it could not have created a lien under that
law unless it had been recorded, although under the law,
as it stood before that, it might have created a lien as
between the parties by being reduced to writing, without
out being recorded.
The objection to this position is, as before stated, that
we cannot regard this exhibit as the contract referred to
in the plaintiff's petition, it having been denied, and there
being no statement of facts. And if we were prepared
now to decide that, under the last law on the subject of
mechanics' liens, recording was necessary to fix the lien as
between the parties, which we do not decide, still the
question would remain, that as the verdict requires us to
presume that a contract was proved upon which it was
founded, and the allegation of the petition, from its general
and indefinite character, would admit proof of a contract
executed before the passage of the last lien law, as
well as after it, shall we not rather presume that it was
shown to have been made under the former law, which
would support the verdict, than under the last law that
might defeat it? We think so; and, therefore, it is not
necessary now to decide whether or not, under the last
lien law, the contract should be recorded to fix the lien as
between the parties to the contract. (See lien laws, Pas.
Dig., arts. 4592, 7112.)
Having examined and re-examined this case repeatedly,
we conclude that, under a strictly legal view of it, the
record presents no such error as we are authorized to recognize
as sufficient for its reversal.
I-ad the defendant below specially excepted to the petition
for want of definiteness in stating the time at which
the building contract was entered into, and the petition
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/180/: accessed May 26, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .