Upholding Lien If Contractor Forced to Stop His Work by the Owner

In Trammell v. Mount, 68 Tex. 210, 4 S.W. 377 (Tex. 1887), Mount was a materialman who provided stone for the construction of a house. The contractor notified him that it was unable to comply with its part of the contract, and Mount was forced to quit work. Trammell, 68 Tex. at 212, 4 S.W. at 378. Some four hundred perches of stone included in Mount's billing were not delivered upon the premises, although they were prepared for the building; they were left about a mile and a half from the construction scene. Trammell, 68 Tex. at 212, 4 S.W. at 378. The question before the Texas Supreme Court was whether Mount's lien could cover the amount of the cost of the four hundred perches. The supreme court held that a lien should be upheld "where the delivery of the material at the building is prevented by the act or direction of the owner. If he directs, for his own convenience, that the material be delivered at some other place, or, after it is prepared, and nothing is left to be done by the material-men but to take it to the building spot, the owner violates his contract and refuses to receive it, it seems that justice dictates that through his own conduct the owner should not defeat the lien." Trammell, 68 Tex.at 213, 4 S.W. at 378. The court went on to explain its rationale: The present is a strong case in favor of the mechanic. He made a contract to construct the stone work of a house for a given sum. The parties with whom he contracted failed to perform their part of the contract, and forced him to quit work. Had he completed the work, he would have been entitled to the full sum agreed on, and to enforce a lien to collect it. Under the law, when compelled to desist from the work, he was entitled to a pro rata recovery. Why should he not enforce his lien to the same extent ? the law gave him a lien as an incident to the contract. Everything that he did in pursuance of that contract was necessarily done towards the construction of the building, and as necessarily carried with it a right to the lien. In the nature of things, much of the work had to be done away from the building. If the contractor had been permitted to go on with his contract, it would have entered into the improvement he had agreed to make. If forced by the owners to stop before he could place the work in the building, it would not change its character. It was still work done under a contract for constructing the walls, and as such should carry with it a lien upon the building. The owner was not thereby relieved from liability to pay for the work done, and his liability under the contract carried with it the mechanic's lien. . . .Trammell, 68 Tex. at 214, 4 S.W. at 379. See also Brick & Tile, Inc., v. Parker, 143 Tex. 383, 386, 186 S.W.2d 66, 67 (Tex. 1945) (materialman's lien cannot be defeated by proof that the buyer used a part of the material for other purposes); Houston Fire & Cas. Ins. Co. v. Hales, 279 S.W.2d 389, 392-93 (Tex. Civ. App.-Eastland 1955, writ ref'd n.r.e.) (a materialman's lien arises even if the material does not actually enter into the construction, unless the builder "turns back" the material to the materialman).