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PLEASANTS, C. J. The following suffi-, There was a verdict and judgment for the cient statement of the nature and result of plaintiff against the administrator. The Suthis suit is copied from the brief of plaintiff preme Court, speaking through Justice Hempin error:
hill, said: This was an action for debt brought by defend- "The only question is, whether there was ant in error December 9, 1916, against Mrs. error in the proposition that the statute did Idah Sam, executrix of the estate of Joe M. not commence to run against the claim, until Sam, deceased, the suit being based upon the there was demand for the restoration of tho following instrument; "November 6, 1899. Re- money, and it appears very clear, upon the au
: ceived of Peter Ludtke $300.00 for safe-keeping. thorities, that this was erroneous; that an Joe M. Sam.” Plaintiff alleged that he left account or note payable on demand' is payable said $300 with Joe M. Sam for safe-keeping, immediately; that there need be no special dewith the understanding that he was to have it mand, and that the statute of limitations comany time he asked for it, and with the under- mences to run from the date of the note or acstanding that Joe M. Sam was to pay six per count (citing cases). A receipt for a sum of cent. for the use thereof; that plaintiff did not money for which the person receiving it unneed said money before the death of said Joe M. dertook to return it with interest 'when called Sam, and therefore made no demand therefor; on' so to do created a cause of action from that the estate of said Joe M. Sam, deceased, is its date, and against it the statute runs from now indebted to said Peter Ludtke in the sum that time” (citing Berry v. Griffith, 1 Har. & of $300, together with six per cent. interest | G. 440). from date." The prayer was for a judgment for said debt, with interest and costs and gen
Quoting further: eral relief.
An answer was filed by Mrs. Idah "The agreement in this case, as it appears Sam as independent executrix of the estate of from the evidence, was that the money should Joe M. Sam, deceased, consisting of a general be paid the plaintiff when he demanded it. In demurrer, a general denial, a plea of payment, other words, it was a loan of money payable of estoppel upon the ground of gross laches and on request, and the debt which constitutes the the statute of limitation of four years. Upon cause of action arose instantly on the loan ; hearing before the court without a jury, judg- consequently the statute commenced to run ment was rendered on February 3, 1917, in immediately, and the demand, as alleged, and favor of plaintiff, Peter Ludtke, against “Mrs. even as proven, was clearly excluded by the Idah Sam” for the sum of $300, with interest bar of the statute." from the date of the judgment at the rate of 6 per cent. and all costs of court.
In the case of Henry v. Roe, 83 Tex, 446,
18 S. W. 806, the suit was upon a demand  The allegations of plaintiff's petition note, and in holding that limitation began to and the undisputed evidence show that plain- run from the date of the note the court said: tiff's cause of action was barred by the statute of limitation of four years, and, defend-tution of suit, nor was it necessary to allege de
“No demand was necessary before the instiant having properly pleaded the statute in mand. The note, being payable on demand, was bar of plaintiff's right to recover, judgment actionable at once, and the statute of limitashould have been in her favor. As before tions began to run from its date; in other shown, the petition alleges that when the ly, without demand, and without averment of
words, the note was due and payable immediate$300 was turned over to Sam by plaintiff and the fact" (citing a number of cases). the instrument sued on executed, Sam agreed to pay plaintiff interest on the money at the In Swift v. Trotti, 52 Tex. 498, which was a rate of 6 per cent. per annum. Plaintiff suit on account, for money loaned, payable testified that this was the agreement, and on demand the court held that no time elapsthere was no testimony to the contrary. Joe ed before the running of the statute of limitaM. Sam died on February 14, 1915, and plain- tion except such time as the statute was tiff in error is the independent executrix of suspended by law. his will. The trial judge found the facts in Other cases in point are Eborn v. Zimpelaccordance with the undisputed evidence, man, 47 Tex. 503, 26 Am. Rep. 315; Pollard but held that because no demand was made v. Allen, 171 S. W. 538. by Ludtke for the payment of the money, It is stated in Cyc. vol. 7, pp. 847, 848, the statute of limitation did not begin to run that while some courts hold that a demand is prior to the death of Sam. It is well settled necessary to start the running of the statute by the authorities that an obligation or prom- of limitation against a demand obligation, or ise to pay money on demand is payable im- at least that the payee must have a reasonmediately, and no demand is necessary to able time to make demand before the statute start the running of the statute of limitation. becomes operative, most of the courts have In the case of Cook v. Cook, 19 Tex. 436, held that paper payable on demand is due which was a suit aganst an administrator to immediately, and the statute of limitation recover money loaned by the plaintiff to the begins to run from the date of the paper. decedent to be paid back on demand, the ad-  We think it clear that upon the allegaministrator of the decedent testified that he tions of the petition and the undisputed evihad heard the decedent say that he owed the dence no such trust relation was shown as money, and that the agreement was that it would prevent the running of the statute of should be paid to the plaintiff whenever he limitation. Tinnen v. Mebane, 10 Tex, 246, 60 should demand it; that he, the administra- Am. Dec. 205; Pollard v. Allen, 171 S. W. tor, rejected the account because he believed 530; Richardson v. Whitaker (Ky.) 45 S. W. it was barred by limitation. The trial court 774. ruled that the statute did not commence to  For obvious reasons, the general rule run until demand made for the money loaned. I that limitation runs against a demand obligation from its date does not apply to bank the same by written lease to Nick Pappas and deposits.
C. E. Cartevinis, March 31, 1916, for a term In 3 Ruling Case Law, 375, the author of two years and six months from that date notes the "distinction between doing a bank- for the agreed rental of $75 per month. ing business and performance of isolated was stipulated therein that the lessor should acts of which the business consists." The have the lien to secure the rent upon all distinction is more fully set out on page 569: goods, wares, chattels, implements, fixtures,
“The statement frequently made that the furniture, tools, or other personal property relation between depositor and banker is mere- which are or may be placed on the premises. ly that of debtor and creditor does not mean that a bank, like a common debtor, must look The tenants went into possession on the up its creditor and pay him whenever and wher-date of the contract, and continued therein ever found. To the contrary, it pays only over as tenants under the contract until January its own counter. The deposit not being due 1, 1917, but failed to pay the rents for the till demand is made, it is the demand and re- balance of August, 1916, and for the months fusal to pay that sets the statute running."
There is the same distinction between of September, October, November, and De. banks and individuals as to certificates of cember, 1916, amounting to the sum of $325. deposit. 3 Ruling Case Law, 582.
At the time of the lease contract and at The facts in this case being undisputed, and the time the tenants took possession of the the law applicable thereto requiring a judg- café there was in the building certain desigment in favor of plaintiff in error, the judg- nated personal property which is not necesment of the court below is reversed, and judg- sary to describe. . During the year 1916 and ment here rendered in favor of plaintiff in prior thereto the appellant, the Wichita Falls error.
Sash & Door Company, was a duly incorpoReversed and rendered.
rated company under the laws of Texas; its business being the furnishing of labor and material and the erection of screen doors,
tables, shelves, iceboxes, counters, mirrors, WICHITA FALLS SASH & DOOR CO. V. back cases, and also sash and doors. On JACKSON et al. (No. 1332.)
the 15th of April, 1916, the appellant con(Court of Civil Appeals of Texas. Amarillo. tracted with the tenants aforesaid to furApril 10, 1918. Rehearing Denied nish the labor and material to construct May 8, 1918.)
and make for the tenants a back counter 1. CONSTITUTIONAL LAW E34 – SELF-EXE- for the sum of $125, and another counter for CUTING PROVISION OF CONSTITUTION.
$ Const. art. 16, § 37, providing mechanics $120, and charged for extra labor in placing shall have a lien on the buildings and articles
the same $17.25, two screen doors, $7, and made or repaired, and that the Legislature shall screen wire for two doors $3.25, and also provide for speedy and efficient enforcement between the above date and the 22d day of thereof, gives an enforceable lien without action June, 1916, several other articles were made,
the material and labor of which was done MADE”-PRIORITY-RELINQUISHMENT – No- and furnished by appellant to the tenants. TICE.
Some of the items appear to have been for There being no statute providing a method repairs or addition to other articles. The of giving notice of mechanic's lien on "articles made," that is, personal property, Rev. st. aggregate amount of the labor and material
St. 1911, $8 5621, 5622, 5624, relating only to build so furnished totaled $469.75, with credits ings, any right of priority of lien of one who amounting to $200, leaving a balance due having constructed store fixtures for the lessee of a store, surrendered them to the lessee, who on the account of $269.75. All the articles put them into the building, was relinquished as so furnished, together with the labor thereagainst the lien of the landlord, who was given on, were placed in the café on or before no actual notice of such lien.
June 22, 1916. The appellant filed its veriAppeal from Wichita County Court; Har-fied account to fix a mechanic's lien on the vey Harris, Judge.
above articles with the county clerk of WichActions by the Wichita Falls Sash & Door ita county on August 29, 1916. The appelCompany and by J. L. Jackson against Nick lant and the appellee each sued the tenants Pappas and others were consolidated. From Pappas and Cartevinis on their respective an adverse judgment, the plaintiff company claims, seeking to foreclose their liens on appeals. Affirmed.
the property in question. Jackson, by his Carrigan, Montgomery & Britain, of Wich-suit, also made appellant the Wichita Falls ita Falls, for appellant. T. R. Boone and Sash & Door Company and others parties. E. H. Eddleman, both of Wichita Falls, for Other parties also sued the tenants to estabappellees.
lish debts against them, and sued out at
tachments. These latter parties are not comHUFF, C. J. This is a contest as to prior-plaining in this court, and it will be unnecesities between an asserted material and me- sary to further mention them. All the cases chanic's lien, and the landlord's lien. Ap- were consolidated in the lower court and pellee, J. L. Jackson, owned what is known tried before the court without a jury. The in the record as the Herne Café, and leased I court rendered judgment for Jackson against
Pappas and Cartevinis for the sum of $325, for labor and material furnished upon "arforeclosing his landlord's lien upon all the ticles made or repaired,” as distinguished articles in the café, including those upon from a building. It is asserted that “artiwhich appellant claims a mechanic's lien; cles," as used in the Constitution, was used also rendered judgment for the Wichita in the ordinary sense of the word, and thereFalls Sash & Door Company against Pappas fore referred to such articles as would fall and Cartevinis, for the sum of $269.75, fore- under the designation of personal property, closing the lien on the articles upon which it as distinguished from buildings. It is conclaimed a mechanic's lien subject to the tended by appellee that article 5621, R. C. S., landlord's lien. The decree directed that does not relate to "articles made or repaíred,"
, the articles other than those upon which but only refers to such articles when used to appellant claimed a lien be first sold, and erect, repair, or improve a building, giving that the articles upon which a lien was given the parties so furnishing the articles a lien to appellants be next sold and the proceeds on the building and land, and to secure such be first applied to the remainder of the lien, and that the filing of the original conjudgment in favor of Jackson, etc.
tract or a verified account in the county  Under the first assignment appellant, clerk's office and recorded in the mechanic's by proposition, asserts that mechanics and lien records, as provided for by articles 5622 materialmen, under article 16, § 37, of the and 5624, does not apply to this case. In Constitution, have a lien upon articles made this contention we think appellee correct. or repaired by them for the value of the Appellant in some measure concedes that the labor done thereon and material furnished, articles above named do not here apply. If superior to the landlord's lien. The Consti- they do not apply, then the filing of the bill tution gives mechanics and materialmen of of particulars with the county clerk for recevery class a lien upon articles made or re
ord would not constitute notice to the landpaired by them for the value of the labor lord. The appellee further contends that ardone thereon or material furnished therefor, ticles 5665-5667, are the articles which reand provides that the Legislature should by late to articles made or repaired. By these law make provision for the speedy and effi
statutes it is provided if any article shall cient enforcement of the lien. Our Supreme be repaired with labor and material or with Court has settled that this provision of the labor without furnishing material by any Constitution gives such lien to the class nam- carpenter or other workman, such mechanic ed independent of the statute, and if no law is entitled to retain possession of the article has been passed in obedience to this provi- until the amount due for repairing by consion the general rule of equity would govern tract is fully paid. It is doubtful if these the foreclosure of the lien. Warner Elevator articles refer to "articles made” mentioned Co. v. Maverick, 88 Tex. 489, 30 S. W. 437, 31 in the Constitution. If any of the articles
v, S. W. 353, 499; Implement Co. v. Electric Co., were repaired the mechanic, if he relinquish74 Tex. 605, 12 S. W. 489; Trammell V.
es possession to the owner, could not again Mount, 68 Tex. 210, 4 S. W. 377, 2 Am. St.
. Rep. 479; Johnson v. Amarillo Implement recover them. This was held by two differ
ent courts. Caldwell v. Auto Sales & Supply Co., 88 Tex. 505, 31 S. W. 503; Strang v. Pray, 89 Tex. 525, 35 S. W. 1054. We under- Co., 158 S. W. 1030; Ford Motor Co. v. Freestand from the above authorities and many tional question was not considered in those
man, 168 S. W. 80. However, the constituothers, while the Legislature has the power to provide for a speedy remedy, the mere
cases, and the question of a lien fixed there. fact that the mechanic has not complied with by was not discussed in either case. the statute as to the time of filing his lien,
As to articles made, we think the Constinotice, and the like, the lien as between the tution gives a lien to secure the amount due original parties would not be defeated, but the trial court in this case, could be foreclos
for labor and material, and, as found by may be enforced. It is true, we think, that the trial court in this case, could be foreclosif after work done or material furnished the ed. We do not find any statute, and have mechanic, within the time prescribed by law, not been pointed to one, which provides a files his lien, it will relate back to the date method of giving notice of such lien to subwhen such labor or material was furnish- sequent mortgagees or lienholders. Such me
a ed, and will be superior to an intervening chanic's lien may have a preference over the contract lien created after the inception of landlord's lien if when the article was placed the mechanic's lien. Oriental Hotel Co. V.
in the building the landlord had notice thereGriffith, 88 Tex. 574, 33 S. W. 652, 30 L. R. of. It occurs to us if the mechanic surA. 765, 53 Am. St. Rep. 790; Sullivan v. renders possession to his employer, and perCoal Co., 94 Tex. 541, 63 S. W. 308, and au- mits him to place the article in the buildthorities above cited. As we understand, the ing rented without notifying the landlord, effect of the authorities is that the Legisla- he would relinquish his preference right. As ture, under the Constitution, may prescribe to third parties who have no actual notice such things done as may be deemed neces of the labor having been performed or masary for the protection of the owner or pur-terial furnished the lien we do not think enchaser of property.
forceable as a preference one. De Bruin v.  The lien contended for by appellant is | San Domingo, etc., 194 S. W. 654. The above case cites and discusses the authorities with Wm. R. Booth and D. W. Odell, both of reference to mechanic's lien and its effect Ft. Worth, for plaintiff in
for plaintiff in error. Bryan, with reference to notice and the requirements Stone & Wade, of Ft. Worth, for defendants of the statute in regard thereto. It has in error. been held in this state that a landlord is a creditor, and when property is placed in his BUCK, J. Suit was instituted by plainbuilding by the tenant prior to the time of tiff in error against Mrs. Margaret Ann Holrecording a chattel mortgage thereon that loway, individually and as executrix or adthe landlord's lien has preference. Furniture ministratrix of the estate of H. C. Holloway, Co. v. Hotel Co., 81 Tex. 135, 16 S. W. 807; deceased, and others, for possession and the Low v. Troy Laundry Co., 160 S. W. 136, right to use as a road and means of ingress and authorities cited; Rogers v. Griggs, 29 and egress to and from plaintiff's premises a S. W. 654. In this case the current contract certain strip of land across a portion of the year began March 31, 1916. The property premises belonging to the estate of H. C. Holwas placed in the building thereafter and loway, deceased. From a judgment denying before June 22d following. The default on the relief prayed for, Mrs. Mosher has prosthe rent occurred in August, September, Oc-ecuted her appeal by writ of error. Only one tober, November, and December of that year, assignment of error is presented, that is, to for which judgment was rendered. The stat-the giving by the court to the jury of a perute fixed the lien for the current contract emptory instruction in favor of the defendyear, even if the contract was for a longer ant. Appellees object to the consideration term. Article 5490, R. C. S.; Allen v. Brun-of this assignment on the ground that the ner, 33 Tex. Civ. App. 128, 75 S. W. 821 ; record fails to disclose that any objection Low v. Troy, etc., supra. We do not believe to the giving of the peremptory instruction that this case comes within that class of was made by appellant before the court's cases where precedence is given to laborer's charge was delivered to the jury, or that the lien over existing liens.
In that class of objection was called to the attention of the cases the preference right rests upon the court or was acted on by the court. principle that it is as much benefit to the
 The record discloses that the cause mortgagee as to the mortgagor. So far as the was tried March 22, 1917, and judgment upfacts show, the property in this case was on peremptory instruction was rendered the delivered to the tenant and placed in the same day. That plaintiff filed her excepbuilding without any notice to others that. tions to the courts charge on the same day, there was a prior lien.
but there is nothing to show that the court We believe the judgment should be af- considered the same or acted thereon. The firmed.
term of the court ended March 31, 1917. A
motion for a new trial was filed on March HALL, J., not sitting.
24th, and on May 7th, at the next term, the court overruled the same and plaintiff excepted and gave notice of appeal. The appeal
bond shows to have been filed April 11, 1917, MOSHER v. DINGEE et al. (No. 8843.)
and to have been given to enable the appel(Court of Civil Appeals of Texas. Ft. Worth. lant to prosecute her appeal from a judgApril 6, 1918.)
ment rendered on the 10th day of March,
1917, and from the overruling of a motion 1. APPEAL AND ERROR @ww500(4)—SCOPE OF for a new trial on March 31, 1917. In this REVIEW-PRESERVATION OF EXCEPTIONS.
Where record showed that the cause was state of the record we have concluded that tried March 22d and judgment on peremptory appellée's objection to the consideration of instruction was rendered the same day, and appellant's assignment must be sustained. that plaintiff filed exceptions to the charge on
 Objection to the charge must be made the same day, but failed to show that the court considered them or acted thereon, assignment of before the giving of the charge to the jury. error to the giving of peremptory instruction Thorne v. Dashiell, 189 S. W. 986; Pearce could not be considered.
v. Knights and Ladies of Honor, 190 S. W. 2. APPEAL AND ERROR C 230—SCOPE OF RE- 1156; Case v. Folsom, 170 S. W. 1066; and VIEW-PRESERVATION OF EXCEPTIONS.
Railway Co. v. Wilson, 176 S. W. 619. It To preserve the question for review, objection to the charge must be made before giving was held by the Supreme Court in the case the charge to the jury, and the rule applies to of Gulf, T. & W. Ry. Co. v. Dickey, 108 Tex. peremptory instructions.
126, 187 S. W. 184, that while it was not nec
essary in order to obtain a review of a genError from District Court, Tarrant Coun-eral charge of the court on appeal that a ty; R. E. L. Roy, Judge.
bill of exception to the charge should be re Suit by B. M. Mosher against Mrs. Mar- served, yet it must appear that the objecgaret Ann Holloway, individually and as ex- tion was presented to the court before the ecutrix of the estate of H. C. Holloway, de charge was read to the jury. This rule was ceased, A. S. Dingee, and others. Judgment held in Thorne v. Dashiell, supra, to apply for defendants, and plaintiff brings error. to peremptory instructions. See, also, RailAffirmed.
way Co. v. Wheat, 173 S. W. 974; Needham
v. Cooney, 173 S. W. 979; Railway Co. v., was, by consecutive annual renewal extenFeldman, 170 S. W. 133; Case v. Folsom, sions, extended to June 27, 1906, 1907, 1908, v,
, 170 S. W. 1066; Railway Co. v. Wilson, 176 1909, 1910, 1911, and 1912, as shown by variS. W. 619; Donaldson v. McElroy, 184 S. W. ous interest payments indorsed on back of 1100. Writ of error was refused in Donald- said note; said note being extended from son v. McElroy, supra.
each recurring annual period after its origThe judgment is affirmed.
inal date of maturity, so that the last date Affirmed,
of maturity thereon extended it to mature June 27, 1913, and all interest, to wit, the
sum of $10 a year, was paid up to and inPOYTHRESS v. IVEY et al. (No. 8822.)
cluding June 27, 1912, as shown by indorse(Court of Civil Appeals of Texas. Ft. Worth. ments on back of said note, leaving due and March 16, 1918. Rehearing Denied
outstanding thereon on June 27, 1913, the April 20, 1918.)
sum of $400, bearing interest from said date 1. LIMITATION OF ACTIONS Om 167(1)-ACTION at 10 per cent. per annum. It was further TO ENFORCE RIGHT OF ACTION PLEDGED
alleged that on October 29, 1910, said Evans BAR OF DEBT.
Though a pledge can be subjected to pay- made and executed unto defendant Mebane ment of a debt already barred, where the con- his warranty deed, conveying lots 2 and 3 tract of bailment gives the pledgee the right to of block 1 of said addition, and as part paysell the article in case the debt is not paid, re- ment therefor said Mebane executed and decovery cannot be had on a collateral note, where resort must be had to the court to establish the livered unto said Evans his certain 19 promoriginal debt and enforce the rights, and such issory notes, payable monthly, each in the debt is barred.
sum of $20; that after the first two notes 2. LIMITATION OF ACTIONS Cw146(1)-VERBAL had matured and been paid, said Evans ACKNOWLEDGMENT.
Mere verbal extension of past-due note with hypothecated the other 17 of said notes to out further consideration is within Vernon's appellant to secure the $400 note, said notes Sayles' Ann. Civ. St. 1914, art. 5705, providing being indorsed in blank, and that appellant that acknowledgment of justness of claim after became vested with the legal title thereto, running of the statute.
together with the liens on said land and said 3. LIMITATION OF ACTIONS Om 167(2) - FORE. notes to secure appellant in the payment CLOSURE OF MORTGAGE-BAR OF DEBT.
of said $400 note; that on February 21, The debt secured being barred by limitations, 1907, said Evans by general warranty deed action to foreclose mortgage is barred.
conveyed to the Lindsays lot 6 out of said Appeal from District Court, Tarrant Coun- block, and that said Lindsays executed and ty; R. E. L. Roy, Judge.
delivered to said Evans their promissory note Action by Joe Poythress against Mrs. Min- in the sum of $765, payable in monthly innie E. Evans Ivey and others. From the stallments of $15 each; that said note had judgment, plaintiff appeals. Affirmed in part, 41 credits indorsed on the back thereof as and undisturbed in part.
payments, aggregating the sum of $485; that R. H. Smith, of Ft. Worth, for appellant. on March 9, 1909, said Evans executed and Jas. C. Scott and Harris & Burton, all of delivered unto said appellant "his certain Ft. Worth, for appellees.
collateral promissory note” in the sum of
$450, due one year from date, and bearing BUCK, J. Appellant filed suit against 10 per cent. interest, etc., “and said aforeMrs. Minnie E., Evans Ivey, in her individual mentioned note for $765 attached thereto as capacity as well as in the capacity of inde- collateral security securing same, and also pendent executrix of the estate of Wm. M. indorsed said note in blank on the back Evans, deceased, and her husband Richard thereof, and deposited and hypothecated M. Ivey and A. Lindsay and wife V. A. Lind- same with said Poythress as security for said say, Nelson Mebane, Mrs. Mattie Jackson, $450.” It was alleged that "by reason of H. L. Vaughn, W. J. Meggs, and J. R. Cham- such acts, said Poythress became vested bers. The petition alleged that Mrs. Ivey with the title, liens, and security as securwas the surviving spouse of Wm. M. Evans, ing same.” A credit of $205 on the $450 deceased, and that since the death of Evans, note was admitted. It was further alleged Mrs. Evans had intermarried with Ivey; that Mrs. Evans qualified as independent that on June 27, 1905, Evans executed to executrix of the estate of her deceased husappellant his promissory note in the sum of band, and that thereafter said appellant $400, bearing interest at 10 per cent. per filed his claim against the estate of said annum, and stipulating for the usual 10 Wm. M. Evans, and that said claim was by per cent. attorney's fees; that on same date the court approved for the sum of $689.31. said Evans executed and delivered unto It was further alleged that the other desaid appellant a deed of trust on lots 2 to fendants were claiming some interest in por7 of block 1 of the Wm. M. Evans addition tions of said land described, and were askto the city of Ft. Worth, Tex., and that said ing to have foreclosed their liens thereon, mortgage was placed on record on July 5, but that said claims and liens were inferior 1905; that thereafter the said note for $400 and subsidiary to the lien of plaintiff. De
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