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 defendant in error December 9, 1916, against Mrs. Idah Sam, executrix of the estate of Joe M. Sam, deceased, the suit being based upon the following instrument: "November 6, 1899. Received of Peter Ludtke $300.00 for safe-keeping. Joe M. Sam." Plaintiff alleged that he "left said $300 with Joe M. Sam for safe-keeping, with the understanding that he was to have it any time he asked for it, and with the understanding that Joe M. Sam was to pay six per cent. for the use thereof; that plaintiff did not need said money before the death of said Joe M. Sam, and therefore made no demand therefor; that the estate of said Joe M. Sam, deceased, is now indebted to said Peter Ludtke in the sum of $300, together with six per cent. interest | from date." The prayer was for a judgment for said debt, with interest and costs and general relief. Án answer was filed by Mrs. Idah Sam as independent executrix of the estate of Joe M. Sam, deceased, consisting of a general demurrer, a general denial, a plea of payment, of estoppel upon the ground of gross laches and the statute of limitation of four years. Upon hearing before the court without a jury, judgment was rendered on February 3, 1917, in favor of plaintiff, Peter Ludtke, against "Mrs. Idah Sam" for the sum of $300, with interest from the date of the judgment at the rate of 6 per cent. and all costs of court.

"The only question is, whether there was error in the proposition that the statute did not commence to run against the claim, until there was demand for the restoration of the money, and it appears very clear, upon the authorities, that this was erroneous; that an account or note payable on demand is payable immediately; that there need be no special demand, and that the statute of limitations commences to run from the date of the note or account (citing cases). A receipt for a sum of money for which the person receiving it undertook to return it with interest 'when called on' so to do created a cause of action from its date, and against it the statute runs from that time" (citing Berry v. Griffith, 1 Har. & G. 440).

Quoting further:

"The agreement in this case, as it appears from the evidence, was that the money should be paid the plaintiff when he demanded it. In other words, it was a loan of money payable on request, and the debt which constitutes the cause of action arose instantly on the loan; consequently the statute commenced to run immediately, and the demand, as alleged, and even as proven, was clearly excluded by the bar of the statute."

In the case of Henry v. Roe, 83 Tex. 446, 18 S. W. 806, the suit was upon a demand note, and in holding that limitation began to run from the date of the note the court said:

tution of suit, nor was it necessary to allege de"No demand was necessary before the instimand. The note, being payable on demand, was actionable at once, and the statute of limitations began to run from its date; in other words, the note was due and payable immediately, without demand, and without averment of the fact" (citing a number of cases).

Other cases in point are Eborn v. Zimpelman, 47 Tex. 503, 26 Am. Rep. 315; Pollard v. Allen, 171 S. W. 538.

[1] The allegations of plaintiff's petition and the undisputed evidence show that plaintiff's cause of action was barred by the statute of limitation of four years, and, defendant having properly pleaded the statute in bar of plaintiff's right to recover, judgment should have been in her favor. As before shown, the petition alleges that when the $300 was turned over to Sam by plaintiff and 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 accordance with the undisputed evidence, but held that because no demand was made by Ludtke for the payment of the money, the statute of limitation did not begin to run prior to the death of Sam. It is well settled by the authorities that an obligation or promise to pay money on demand is payable immediately, and no demand is necessary to start the running of the statute of limitation. In the case of Cook v. Cook, 19 Tex. 436, which was a suit aganst an administrator to recover money loaned by the plaintiff to the decedent to be paid back on demand, the ad- [2] 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 run until demand made for the money loaned. that limitation runs against a demand obliga

It is stated in Cyc. vol. 7, pp. 847, 848, that while some courts hold that a demand is necessary to start the running of the statute of limitation against a demand obligation, or at least that the payee must have a reasonable time to make demand before the statute becomes operative, most of the courts have held that paper payable on demand is due immediately, and the statute of limitation begins to run from the date of the paper.

[3] For obvious reasons, the general rule

tion 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 banking business and performance of isolated acts of which the business consists." The distinction is more fully set out on page 569: "The statement frequently made that the relation between depositor and banker is merely that of debtor and creditor does not mean that a bank, like a common debtor, must look up its creditor and pay him whenever and wherever found. To the contrary, it pays only over its own counter. The deposit not being due till demand is made, it is the demand and refusal to pay that sets the statute running.” There is the same distinction between banks and individuals as to certificates of deposit. 3 Ruling Case Law, 582.

for the agreed rental of $75 per month.
was stipulated therein that the lessor should
have the lien to secure the rent upon all
goods, wares, chattels, implements, fixtures,
furniture, tools, or other personal property
which are or may be placed on the premises.
The tenants went into possession on the
date of the contract, and continued therein
as tenants under the contract until January
1, 1917, but failed to pay the rents for the
balance of August, 1916, and for the months
of September, October, November, and De-
cember, 1916, amounting to the sum of $325.
At the time of the lease contract and at

the time the tenants took possession of the
café there was in the building certain desig-

The facts in this case being undisputed, and the law applicable thereto requiring a judgment in favor of plaintiff in error, the judg-nated personal property which is not necesment of the court below is reversed, and judgment here rendered in favor of plaintiff in

error.

Reversed and rendered.

WICHITA FALLS SASH & DOOR CO. V.
JACKSON et al. (No. 1332.)

(Court of Civil Appeals of Texas. Amarillo.
April 10, 1918. Rehearing Denied
May 8, 1918.)

1. CONSTITUTIONAL LAW 34- SELF-EXE-
CUTING PROVISION OF CONSTITUTION.

Const. art. 16, § 37, providing mechanics shall have a lien on the buildings and articles made or repaired, and that the Legislature shall provide for speedy and efficient enforcement thereof, gives an enforceable lien without action by the Legislature.

2. MECHANICS' LIENS 198 - "ARTICLES MADE"-PRIORITY-RELINQUISHMENT No

TICE.

-

There being no statute providing a method of giving notice of mechanic's lien on "articles made," that is personal property, Rev. St. 1911, §§ 5621, 5622, 5624, relating only to buildings, any right of priority of lien of one who having constructed store fixtures for the lessee of a store, surrendered them to the lessee, who put them into the building, was relinquished as against the lien of the landlord, who was given no actual notice of such lien.

sary to describe. During the year 1916 and prior thereto the appellant, the Wichita Falls Sash & Door Company, was a duly incorporated 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, back cases, and also sash and doors. On the 15th of April, 1916, the appellant contracted with the tenants aforesaid to furnish the labor and' material to construct and make for the tenants a back counter for the sum of $125, and another counter for $120, and charged for extra labor in placing the same $17.25, two screen doors, $7, and screen wire for two doors $3.25, and also between the above date and the 22d day of June, 1916, several other articles were made, the material and labor of which was done and furnished by appellant to the tenants. Some of the items appear to have been for repairs or addition to other articles. The aggregate amount of the labor and material

furnished totaled $469.75, with credits amounting to $200, leaving a balance due on the account of $269.75. All the articles so furnished, together with the labor thereon, were placed in the café on or before June 22, 1916. The appellant filed its veri

Appeal from Wichita County Court; Har-fied account to fix a mechanic's lien on the vey Harris, Judge.

Actions by the Wichita Falls Sash & Door Company and by J. L. Jackson against Nick Pappas and others were consolidated. From an adverse judgment, the plaintiff company appeals. Affirmed.

Carrigan, Montgomery & Britain, of Wichita Falls, for appellant. T. R. Boone and E. H. Eddleman, both of Wichita Falls, for appellees.

above articles with the county clerk of Wichita county on August 29, 1916. The appellant and the appellee each sued the tenants Pappas and Cartevinis on their respective claims, seeking to foreclose their liens on the property in question. Jackson, by his suit, also made appellant the Wichita Falls Sash & Door Company and others parties. Other parties also sued the tenants to establish debts against them, and sued out attachments. These latter parties are not com

HUFF, C. J. This is a contest as to prior-plaining in this court, and it will be unnecesities between an asserted material and mechanic's lien, and the landlord's lien. Appellee, J. L. Jackson, owned what is known in the record as the Herne Café, and leased

sary to further mention them. All the cases
were consolidated in the lower court and
tried before the court without a jury.
court rendered judgment for Jackson against

The

Pappas and Cartevinis for the sum of $325, foreclosing his landlord's lien upon all the articles in the café, including those upon which appellant claims a mechanie's lien; also rendered judgment for the Wichita Falls Sash & Door Company against Pappas and Cartevinis, for the sum of $269.75, foreclosing the lien on the articles upon which it claimed a mechanic's lien subject to the landlord's lien. The decree directed that the articles other than those upon which appellant claimed a lien be first sold, and that the articles upon which a lien was given to appellants be next sold and the proceeds be first applied to the remainder of the judgment in favor of Jackson, etc.

[1] Under the first assignment appellant, by proposition, asserts that mechanics and materialmen, under article 16, § 37, of the Constitution, have a lien upon articles made or repaired by them for the value of the labor done thereon and material furnished, superior to the landlord's lien. The Constitution gives mechanics and materialmen of every class a lien upon articles made or repaired by them for the value of the labor done thereon or material furnished therefor, and provides that the Legislature should by law make provision for the speedy and efficient enforcement of the lien. Our Supreme Our Supreme Court has settled that this provision of the Constitution gives such lien to the class named independent of the statute, and if no law has been passed in obedience to this provision the general rule of equity would govern the foreclosure of the lien. Warner Elevator Co. v. Maverick, 88 Tex. 489, 30 S. W. 437, 31 S. W. 353, 499; Implement Co. v. Electric Co., 74 Tex. 605, 12 S. W. 489; Trammell v.

for labor and material furnished upon "articles made or repaired," as distinguished from a building. It is asserted that "articles," as used in the Constitution, was used in the ordinary sense of the word, and therefore referred to such articles as would fall under the designation of personal property, as distinguished from buildings. It is contended by appellee that article 5621, R. C. S., does not relate to "articles made or repaired," but only refers to such articles when used to erect, repair, or improve a building, giving the parties so furnishing the articles a lien on the building and land, and to secure such lien, and that the filing of the original contract or a verified account in the county clerk's office and recorded in the mechanic's lien records, as provided for by articles 5622 and 5624, does not apply to this case. In this contention we think appellee correct. Appellant in some measure concedes that the articles above named do not here apply. If they do not apply, then the filing of the bill of particulars with the county clerk for record would not constitute notice to the landlord. The appellee further contends that articles 5665-5667, are the articles which relate to articles made or repaired. By these statutes it is provided if any article shall be repaired with labor and material or with labor without furnishing material by any carpenter or other workman, such mechanic is entitled to retain possession of the article until the amount due for repairing by contract is fully paid. It is doubtful if these articles refer to "articles made" mentioned in the Constitution. If any of the articles were repaired the mechanic, if he relinquishes possession to the owner, could not again ent courts. Caldwell v. Auto Sales & Supply recover them. This was held by two differCo., 158 S. W. 1030; Ford Motor Co. v. Freetional question was not considered in those man, 168 S. W. 80. However, the constitucases, and the question of a lien fixed thereby was not discussed in either case. tution gives a lien to secure the amount due As to articles made, we think the Constifor labor and material, and, as found by the trial court in this case, could be foreclosed. We do not find any statute, and have method of giving notice of such lien to subnot been pointed to one, which provides a method of giving notice of such lien to subsequent mortgagees or lienholders. Such melandlord's lien if when the article was placed chanic's lien may have a preference over the landlord's lien if when the article was placed in the building the landlord had notice thereof. It occurs to us if the mechanic surrenders possession to his employer, and permits him to place the article in the building rented without notifying the landlord, he would relinquish his preference right. As to third parties who have no actual notice of the labor having been performed or material furnished the lien we do not think enforceable as a preference one. De Bruin v. [2] The lien contended for by appellant is San Domingo, etc., 194 S. W. 654. The above

Mount, 68 Tex. 210, 4 S. W. 377, 2 Am. St. Rep. 479; Johnson v. Amarillo Implement Co., 88 Tex. 505, 31 S. W. 503; Strang V. Pray, 89 Tex. 525, 35 S. W. 1054. We understand from the above authorities and many others, while the Legislature has the power to provide for a speedy remedy, the mere fact that the mechanic has not complied with the statute as to the time of filing his lien, notice, and the like, the lien as between the original parties would not be defeated, but may be enforced. It is true, we think, that if after work done or material furnished the mechanic, within the time prescribed by law, files his lien, it will relate back to the date when such labor or material was furnished, and will be superior to an intervening contract lien created after the inception of

the mechanic's lien. Oriental Hotel Co. v.

Griffith, 88 Tex. 574, 33 S. W. 652, 30 L. R. A. 765, 53 Am. St. Rep. 790; Sullivan v. Coal Co., 94 Tex. 541, 63 S. W. 308, and authorities above cited. As we understand, the effect of the authorities is that the Legislature, under the Constitution, may prescribe such things done as may be deemed necessary for the protection of the owner or purchaser of property.

Error from District Court, Tarrant Coun- eral charge of the court on appeal that a ty; R. E. L. Roy, Judge.

v. Cooney, 173 S. W. 979; Feldman, 170 S. W. 133;

170 S. W. 1066; Railway Co. v. Wilson, 176
S. W. 619; Donaldson v. McElroy, 184 S. W.
1100. Writ of error was refused in Donald-
son v. McElroy, supra.

The judgment is affirmed.
Affirmed.

POYTHRESS v. IVEY et al. (No. 8822.)
(Court of Civil Appeals of Texas. Ft. Worth.
March 16, 1918. Rehearing Denied
April 20, 1918.)

1. LIMITATION OF ACTIONS

167(1)-ACTION TO ENFORCE RIGHT OF ACTION PLEDGED BAR OF DEBT.

Railway Co. v. I was, by consecutive annual renewal extenCase v. Folsom, sions, extended to June 27, 1906, 1907, 1908, 1909, 1910, 1911, and 1912, as shown by various interest payments indorsed on back of said note; said note being extended from each recurring annual period after its original date of maturity, so that the last date of maturity thereon extended it to mature June 27, 1913, and all interest, to wit, the sum of $40 a year, was paid up to and including June 27, 1912, as shown by indorsements on back of said note, leaving due and outstanding thereon on June 27, 1913, the sum of $400, bearing interest from said date at 10 per cent. per annum. It was further alleged that on October 29, 1910, said Evans made and executed unto defendant Mebane his warranty deed, conveying lots 2 and 3 of block 1 of said addition, and as part payment therefor said Mebane executed and delivered unto said Evans his certain 19 promissory notes, payable monthly, each in the sum of $20; that after the first two notes had matured and been paid, said Evans hypothecated the other 17 of said notes to appellant to secure the $400 note, said notes being indorsed in blank, and that appellant became vested with the legal title thereto, together with the liens on said land and said notes to secure appellant in the payment of said $400 note; that on February 21, 1907, said Evans by general warranty deed conveyed to the Lindsays lot 6 out of said

Though a pledge can be subjected to payment of a debt already barred, where the contract of bailment gives the pledgee the right to sell the article in case the debt is not paid, recovery cannot be had on a collateral note, where resort must be had to the court to establish the original debt and enforce the rights, and such debt is barred.

2. LIMITATION OF ACTIONS ACKNOWLEDGMENT.

146(1)—VERBAL

Mere verbal extension of past-due note without further consideration is within Vernon's Sayles' Ann. Civ. St. 1914, art. 5705, providing that acknowledgment of justness of claim after it is due, unless in writing, shall not toll the running of the statute.

3. LIMITATION OF ACTIONS

167(2) FORE CLOSURE OF MORTGAGE-BAR OF DEBT.

The debt secured being barred by limitations, action to foreclose mortgage is barred.

Appeal from District Court, Tarrant Coun-block, and that said Lindsays executed and ty; R. E. L. Roy, Judge.

Action by Joe Poythress against Mrs. Minnie E. Evans Ivey and others. From the judgment, plaintiff appeals. Affirmed in part, and undisturbed in part.

R. H. Smith, of Ft. Worth, for appellant. Jas. C. Scott and Harris & Burton, all of Ft. Worth, for appellees.

BUCK, J. Appellant filed suit against Mrs. Minnie E.. Evans Ivey, in her individual capacity as well as in the capacity of independent executrix of the estate of Wm. M. Evans, deceased, and her husband Richard M. Ivey and A. Lindsay and wife V. A. Lindsay, Nelson Mebane, Mrs. Mattie Jackson, H. L. Vaughn, W. J. Meggs, and J. R. Chambers. The petition alleged that Mrs. Ivey was the surviving spouse of Wm. M. Evans, deceased, and that since the death of Evans, Mrs. Evans had intermarried with Ivey; that on June 27, 1905, Evans executed to appellant his promissory note in the sum of $400, bearing interest at 10 per cent. per annum, and stipulating for the usual 10 per cent. attorney's fees; that on same date said Evans executed and delivered unto said appellant a deed of trust on lots 2 to 7 of block 1 of the Wm. M. Evans addition to the city of Ft. Worth, Tex., and that said mortgage was placed on record on July 5, 1905; that thereafter the said note for $400

delivered to said Evans their promissory note in the sum of $765, payable in monthly installments of $15 each; that said note had 41 credits indorsed on the back thereof as payments, aggregating the sum of $485; that on March 9, 1909, said Evans executed and delivered unto said appellant "his certain collateral promissory note" in the sum of $450, due one year from date, and bearing 10 per cent. interest, etc., "and said aforementioned note for $765 attached thereto as collateral security securing same, and also indorsed said note in blank on the back thereof, and deposited and hypothecated same with said Poythress as security for said $450." It was alleged that "by reason of such acts, said Poythress became vested with the title, liens, and security as securing same." A credit of $205 on the $450 note was admitted. It was further alleged that Mrs. Evans qualified as independent executrix of the estate of her deceased husband, and that thereafter said appellant filed his claim against the estate of said Wm. M. Evans, and that said claim was by the court approved for the sum of $689.31. It was further alleged that the other defendants were claiming some interest in portions of said land described, and were asking to have foreclosed their liens thereon, but that said claims and liens were inferior and subsidiary to the lien of plaintiff. De

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes