author: KLINGEMAN, Justice. CADENA, Justice,

text:
    Dennis STEIN d/b/a Speed & Sport Warehouse, a/k/a Speed & Sport Warehouse, Inc., Appellant, v. HOOKER INDUSTRIES, INC., d/b/a Hooker Headers & Casler Performance, Appellee.
    No. 15564.
    Court of Civil Appeals of Texas, San Antonio.
    Oct. 6, 1976.
    Rehearing Denied Nov. 10, 1976.
    Jay Sam Levey, Levey & Goldstein, San Antonio, for appellant.
    Geary, Stahl, Koons, Rohde & Spencer, Stephen A. Brutsche, Dallas, for appellee.
   KLINGEMAN, Justice.

This is a suit by Hooker Industries, Inc., dba Hooker Headers and Casler Performance Products, appellee herein, against Dennis Stein, dba Speed and Sport Warehouse, aka Speed & Sport Warehouse, Inc., for failure to pay for certain automobile accessories and equipment furnished by appellee. Trial was to a jury with a number of special issues being submitted. Both sides filed motions for judgment. The trial court granted appellee’s motion and entered judgment for appellee in the sum of $15,734.47 plus interest, attorney’s fees, and costs of the court. The court, in its judgment, found that Stein had done business as a sole proprietorship from approximately January 1971 to April 27,1971, and that no statutory notice was given to appellee by appellant of the subsequent incorporation of his business.

Article 1302-2.02, Tex.Rev.Civ.Stat.Ann., reads as follows:

Whenever any banking, mercantile or other business firm desires to become incorporated without a change of firm name, such firm shall, in addition to the notice of dissolution required at Common Law, give notice of such intention to become incorporated for at least four (4) consecutive weeks in some newspaper published at the seat of State Government, and in the county in which such firm has its principal business office, if there be a newspaper in such county; provided, however, that such notice shall only be published one (1) day in each week during the said four (4) weeks. Until such notice has been so published for the full period above-named, no change shall take place in the liability of such firm or the members thereof.

Appellant’s points of error may be summarized as follows: (1) The trial court erred in entering judgment for appellee because under the evidence and jury verdict, judgment should have been entered for appellant. (2) Appellant’s failure to publish statutory notice of incorporation without change of firm name, as required by Article 1302-2.02, did not entitle appellee to judgment as a matter of law since there is substantial evidence that appellee had actual notice of such incorporation. (3) Since there was substantial evidence that appellee had actual knowledge of the incorporation of Speed & Sport Warehouse, Inc., a question of fact was presented and appellee waived the issue of estoppel by failing to request proper issues with reference thereto.

Appellee’s suit is basically a suit on an open account, duly verified, with numerous invoices for the merchandise furnished attached to appellee’s petition. Appellee predicates liability basically upon three grounds: (1) Appellee had contracted individually with appellant to pay for the goods in question. (2) Appellant had initially opened his business as a sole proprietorship and established his credit and relationship on that basis and thereafter incorporated without compliance with the statutory notice provisions of Article 1302-2.02. (3) Appellant had represented to appellee that his business was a sole proprietorship, and ap-pellee had relied upon such representation in furnishing the merchandise, and that appellant is estopped to assert the corporate entity as a defense to appellee’s cause of action.

Dennis Stein filed a general denial and also a plea that the claim alleged, even if it were just and true as to the other appellant, in whole or in part, was not incurred by Dennis Stein, and that therefore, Dennis Stein is not indebted to appellee in any sum.

Other pertinent facts may be summarized as follows: (1) Appellee introduced into evidence as an exhibit an application for credit made by Speed and Sport Warehouse to appellee which is dated February 18, 1971, signed by Stein, and which shows Stein as the owner of such business. (2) There was also introduced as evidence a certified copy of an assumed name certificate of Speed and Sport Warehouse, dated January 18, 1971, on file in the office of the County Clerk of Bexar County, Texas. This instrument contains a signature which is purportedly that of Dennis Stein, and lists him as the person conducting such business. It contains a statutory acknowledgment of Dennis Stein. Stein testified that the signature thereon was not his, but there is conflicting testimony by handwriting experts in this regard. (3) It is undisputed that the date of incorporation of Speed & Sport Warehouse, Inc. is April 27,1971. (4) It is also undisputed that the amount of the debt is $15,734.47, but Stein asserts that this is not his debt, but rather the debt of the corporation.

There is a basic dispute between appellant and appellee as to whose burden it was to prove appellant’s defense of actual notice and actual knowledge, with appellant asserting that it was appellee’s burden to show absence of notice or knowledge. Ap-pellee asserts that having proven noncompliance with the provisions of Article 1302-2.02, it was appellant’s burden to prove actual knowledge and notice of incorporation on the part of appellee and to secure fact findings to this effect.

There are a number of Texas cases construing the statute here involved. In Hobbs v. Triangle Supply Company, 378 S.W.2d 726 (Tex.Civ.App. — Eastland 1964, no writ), the plaintiff supplied materials to partners. The partners incorporated their business under the same name, but did not give the statutory notice of incorporation, and plaintiff continued to extend credit to the appellants as individuals and partners. The trial court granted an instructed verdict that appellants were individually liable since there had been no compliance with the statute. Appellants complained on appeal that there were fact questions on the issue of individual liability which should have gone to the jury. The Court of Civil Appeals, in affirming the trial court, stated:

Appellants offered no proof and introduced no evidence showing publication of notice in a newspaper or to show that plaintiff had been notified or informed in any way of the corporation which they had organized prior to the time the material was furnished and the indebtedness here in question came into being. Actually the language of the statute requires publication of such notice in a newspaper as a prerequisite to a release of the firm members. In this state of the record we are unable to see that any issue of fact was presented to the individual liability of appellants.

In a later case, American Smelting & Refining Company v. Ridgway, 412 S.W.2d 675 (Tex.Civ.App. — Houston 1967, writ ref’d n. r. e.), appellant had sold merchandise to appellee as a sole proprietor. Appellee incorporated, using the same name, but failed to give statutory notice to appellant. The trial court held that appellant had notice that the business was a corporation at the time of the deliveries of the goods based on five checks sent to appellant printed with the “Inc.” corporate name. The Court of Civil Appeals reversed and rendered judgment for appellant, stating:

It is our view that Article 1302 — 2.02 means exactly what it says. Appellee contends that the only purpose of said article was to inform parties dealing with the firm of its incorporation and that since the checks sent to appellant after the incorporation gave notice that appellee had become a corporation, it was not necessary to comply with said article. There might be some merit in appellee’s contention if appellant had actual or express knowledge of the incorporation, since in such event it might be presumed that it was intending to contract with and sell the goods in question to the corporation. But such was not the case. There was never any change in the course of dealing.

The Court continued:

The checks did not convey actual knowledge or information to appellant of the incorporation of appellee, nor did they relieve appellee of the duty of publishing the statutory notice. Furthermore, it is our view that the mere receipt and deposit of the checks did not impose upon appellant the duty of making any inquiry.

In Gay Harris and Son, Inc. v. E. H. Schlather & Sons, 423 S.W.2d 467 (Tex.Civ. App. — Austin 1968, no writ), appellants had operated as a partnership and incorporated in 1961 without giving statutory notice. In 1964 appellants began buying from appel-lees, and appellees subsequently sued appellants individually for nonpayment of bills. Appellants contended that at the time of sale appellees knew the appellants had incorporated since “Inc.” was used after the company’s name on the supply truck and one of the checks given in payment had “Inc.” on it. The Court said:

We believe it is immaterial under the facts of this case whether Schlather was exposed to information that might lead to knowledge of the corporate existence. The marking on the truck and on one check did not convey actual knowledge or information to Schlather of the incorporation of appellants, and certainly did not relieve appellants of the duty to publish statutory notice of their incorporation.
The language of the statute clearly requires publication of notice of incorporation as a prerequisite to release of the firm members. There is no proof that appellants informed Schlather that the Harris firm was incorporated, and, as already observed, appellants did not publish notice in newspapers as required by statute. We find no issue of fact presented as to the individual liability of appellants.

Appellants rely heavily on Siboney Corporation v. Dresser Industries, Inc., 521 S.W.2d 639 (Tex.Civ.App. — Houston [1st Dist.] 1975, writ ref’d n. r. e.); Payne v. Lucas, 517 S.W.2d 602 (Tex.Civ.App.— Houston [1st Dist.] 1974, writ ref’d n. r. e.). In both of these cases the issue involved was whether defendant, as a matter of law, was personally liable for debts of the corporation because of his failure to give the statutory notice of incorporation. In Payne the seller sued a former sole proprietorship to recover sums for typewriters sold to the corporation. Defendant had operated his business as a sole proprietorship for two years prior to his incorporation in July of 1967, but after the incorporation gave no statutory notice of such change. The business was sold by defendant on April 1969, and the typewriters were sold in June 1969, after the date of incorporation and after the business had been sold. Plaintiff had no previous dealings with defendant or the business and there was no evidence that credit was extended in the belief that defendant would be personally responsible for the corporate debt. The Court stated:

We believe the obvious purpose of the Legislature in enacting Article 1302-2.02 was to insure continuing protection to persons who without knowledge of the incorporation, extend credit or otherwise change position on the belief that they are dealing with an unincorporated business. We do not believe, however, that the scope of the statute should be extended so as to impose individual liability, as a matter of law, where there is no evidence that the party seeking statutory protection was misled as to the corporate status of the party contracting the debt.

Siboney is a similar type of case where the buyer failed to give the statutory notice of incorporation. The trial court found that the buyer was liable as a matter of law. The Court of Civil Appeals reversed and stated:

The evidence in the case before us does not show that Dresser had any prior dealing with Compression, Inc. and there is no indication that at the time it furnished the merchandise in question to Compression, Inc., it was misled as to its incorporated status. We therefore can ascertain no ground for the imposition of statutory liability under Article 1302-2.02 . . .

These cases are clearly distinguishable from the case before us. We do not have a situation before us where there were no previous dealings between the seller and the buyer. There is ample evidence of such previous dealings as hereinbefore set forth.

Appellant argues that appellee knew or should have known that it was operating as a corporation at the time credit was extended, relying basically on evidence that a sign in front of appellant’s warehouse read “Speed & Sport Warehouse, Inc.” and that various checks and other written material were sent to appellee which contained the name, Speed & Sport Warehouse, Inc. Assuming that this is some evidence that ap-pellee knew or should have known of the existence of the corporation, there is clearly evidence that it did not. There was introduced into evidence checks sent by appellant after the incorporation which were styled “Speed and Sport Warehouse,” without the “Inc.” on such checks, and there is evidence that it wasn’t until about a year after the incorporation that checks were used by appellant which contained the “Inc.” on them. The credit manager of appellee testified that Stein never told him that his business was incorporated or that he intended to incorporate; that he supplied and approved credit to Stein on the belief that he was dealing with an individual and was approving credit for Stein and not a corporation. The sales manager for appellee.testified that Stein never told him that his business was incorporated or that he had any intention of incorporating, and that he never knew he was dealing with a corporation. A credit supervisor for appel-lee testified that he relied on information given him in the credit application, which shows Stein as being a sole proprietorship; that he felt that Stein was buying goods as a sole proprietorship; and that no credit would have been extended to a corporation owned by Stein since they were relying on Stein’s family background and finances.

Appellee made a prima facie case by introducing evidence of prior business dealings and extension of credit to the unincorporated business of the same name, and also introducing evidence, which is uncontradict-ed, that appellant did not give the statutory notice of incorporation, as required by Article 1302 — 2.02. It was then incumbent upon appellant to prove and secure fact findings in support of his defenses of “actual knowledge” or “actual notice.” This he failed to do. While the evidence relied on by appellant may be some evidence of actual notice or actual knowledge, it is at best conflicting and disputed. There are no fact findings to support appellant’s defense of actual notice or actual knowledge, and the implied findings of the trial court are to the contrary. There is ample evidence to support the trial court’s implied finding that there was neither actual notice nor actual knowledge.

All of appellant’s points of error have been considered and all are overruled. The judgment is affirmed.

CADENA, Justice,

concurring.

I would affirm the judgment without suggesting that Article 1302-2.02 applies only where the creditor has previously engaged in business dealings with, or has previously extended credit to, the debtor.

      . The trial court granted an interlocutory summary judgment against Speed & Warehouse, Inc. on January 30, 1975. Subsequently, Speed & Sport Warehouse, Inc. filed for reorganization under Chapter XI of the Federal Bankruptcy Act, and the trial court severed appellee’s cause of action against Speed & Sport Warehouse, Inc. from the cause.

      . The jury found, in answer to Special Issue No. 1(a), that Stein was not acting for himself only; (b) that he was acting for Speed & Sport Warehouse, Inc. only. Because of the jury’s affirmative answer to subdivision (a), the only other special issues answered pertain to attorney’s fees. Appellant has no points of error pertaining to the award of attorney’s fees.

      . Appellee argues that since Stein failed to file a sworn denial that he was doing business as “Speed and Sport Warehouse,” under the provisions of Rule 93(o), Tex.R.Civ.P., he therefore has admitted such fact as a matter of law. Such rule provides that a pleading setting up certain matters, unless the truth of such matters appear of record, shall be verified by affidavit including “(o) That a party plaintiff or defendant is not doing business under an assumed name or trade name as alleged.”


source: Caselaw Access Project

author: EVANS, Justice.

license: Public Domain

text:
    MAINLAND SAVINGS ASSOCIATION, Appellant, v. J. Howard WILSON, dba Casa Villa Construction Company, Appellee.
    No. 16747.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 21, 1976.

      Mabry, Herbeck & Neumann, William G. Neumann, Jr., Texas City, for appellant.
    Donald L. Martin, Houston, for appellee.
   EVANS, Justice.

Mainland Savings Association, plaintiff in the trial court, appeals from that part of a summary judgment entered in favor of defendant J. Howard Wilson, individually and d/b/a Casa Villa Construction Company, decreeing that plaintiff take nothing with respect to its cause of action asserted against the defendant on a $45,000 promissory note dated June 26,1970. The basis of the defendant’s motion for summary judgment was that the note was barred by the four year statute of limitations.

In one point of error the plaintiff contends that the trial court erred in refusing to grant its motion for non-suit which was filed prior to the hearing but after the date of filing of the defendant’s motion for summary judgment.

Rule 164, Texas Rules of Civil Procedure, as amended effective January 1, 1976, provides:

“Upon the trial of any case at any time before plaintiff has rested his case, i. e., has introduced all of his evidence other than rebuttal evidence, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief.”

Prior to this amendment the plaintiff could take a non-suit, as a matter of right, at any time before the court announced its decision in open court. Mitchell v. Coker, 531 S.W.2d 204 (Tex.Civ.App.— Waco 1975, writ ref’d n. r. e.), 535 S.W.2d 175 (Tex.1976). As amended, the rule permits the plaintiff to take a non-suit only until it rests its own case-in-chief. Coker v. Mitchell, supra, at page 176.

The plaintiff in the present case sought to recover on three notes, one of which was the June 26, 1970 note in question. The defendant responded with a general denial and by special plea asserting the four year statute of limitations. On October 2, 1975, the plaintiff filed a motion for summary judgment with respect to all three notes, and this motion was presented to the court for hearing on January 30, 1976. At that time the court entered no order, and the motion was taken under advisement. On February 3, 1976, the defendant filed a motion for partial summary judgment with respect to the subject note, asserting as grounds therefor that under the undisputed facts established by the plaintiff’s motion, the four year statute of limitations barred the plaintiff’s claim as a matter of law. On February 25, 1976 the plaintiff filed a motion for non-suit with respect to the subject note, which motion recites in part:

“On the 30th day of January 1976 a hearing was held on plaintiff’s motion for summary judgment. At that time, the court was of the opinion, and the defendant voiced no objection thereto, rendering of the summary judgment in favor of the plaintiff ... on that one certain promissory note dated January 23, 1970 . and ... on that one certain promissory note dated September 10, 1970 . . . however, the court was of the opinion that plaintiff’s motion for summary judgment in respect to that promissory note . . . dated June 26, 1970 . . . was barred by the four year statute of limitation. At that time the court continued the hearing on plaintiff’s motion for summary judgment.”

On March 2, 1976 the defendant filed a response to the plaintiff’s motion for non-suit, asserting that the motion was not timely filed. On March 8, 1976 the trial court rendered a summary judgment in favor of the plaintiff on the notes of January 23 and September 10, 1970, and in favor of the defendant with respect to the subject note dated June 26, 1970.

The question for this court’s determination is whether under these circumstances there was a submission of the plaintiff’s case-in-chief upon the “trial” of the case, which prevented the plaintiff from taking a non-suit under Rule 164, T.R.C.P., as amended.

In Collins v. Waldo, 291 S.W.2d 360 (Tex. Civ.App. — Eastland, 1956, no writ), a summary judgment proceeding was considered a trial in that the plaintiff was precluded from taking a non-suit after the court had announced its decision to grant the defendant’s motion. A summary judgment proceeding has also been treated as a trial with respect to the filing of amended pleadings under Rule 63, T.R.C.P. Bruce v. McAdoo, 531 S.W.2d 354 (Tex.Civ.App. — El Paso, 1975, no writ), and authorities therein cited.

There do not appear to be any Texas cases on the precise question before the court.

In the State of Washington, a rule similar to Rule 164, T.R.C.P., provides that an action may be dismissed on the plaintiff’s motion at any time before the plaintiff rests “at the conclusion of his opening case.” C.R. 41, Washington Civil Rules for Superior Court.

In Paulson v. Wahl, 10 Wash.App. 53, 516 P.2d 514 (Division 1, 1973), the defendant had filed a motion for summary judgment and in response plaintiff filed a motion for voluntary dismissal which was granted. The Washington Court held that since the non-moving plaintiff’s motion for voluntary dismissal was made prior to the time the defendant’s motion for summary judgment was submitted to the court for determination, the plaintiff retained the right to a voluntary non-suit. The court ruled that the mere filing of the defendant’s motion and the scheduling of the motion for hearing did not constitute its submission to the court.

In Texas the filing by either party of a motion for summary judgment does not of itself constitute a submission of the motion for the court’s determination. Until the summary judgment motion is scheduled for hearing and actually presented to the court at such hearing, there is no certainty that it will ever be submitted to the court. The mere filing of the motion does not prevent the moving party from later withdrawing the motion, in whole or in part.

In the case at bar the defendant’s motion for summary judgment based upon the defense of limitations was not submitted to the court until March 8, 1976, which was subsequent to the date of filing the plaintiff’s motion for non-suit. At the time the plaintiff filed its motion for non-suit it was not precluded from amending its pleading so as to allege facts which would extend the time for filing its action on the note in question. Tarkington v. Continental Casualty Co., 341 S.W.2d 490, 492 (Tex. Civ.App. — Fort Worth, 1960, writ ref’d n. r. e.) Nor was plaintiff then prohibited under Rule 164 T.R.C.P. from abandoning all or any portion of the causes of action which it asserted against the defendant. It is accordingly the ruling of this Court that plaintiff’s motion for non-suit was timely filed and that the court erred in entering the partial summary judgment for the defendant.

The part of the summary judgment appealed from is reversed and judgment is rendered that the plaintiff’s cause of action against the defendant on the $45,000 promissory note dated June 26,1970 is dismissed, on plaintiff’s non-suit, without prejudice.


author: KLINGEMAN, Justice.

text:
    PERKINS CONSTRUCTION COMPANY et al., Appellants, v. TEN-FIFTEEN CORPORATION et al., Appellees.
    No. 15559.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 10, 1976.
    Rehearing Denied Jan. 19, 1977.

      Wiley, Plunkett, Gibson & Allen, Daniel R. Rutherford, San Antonio, for appellants.
    Foster, Lewis, Langley, Gardner & Ba-nack, Pepos S. Dounson, Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., Luther H. Soules, San Antonio, Locke, Pernell, Boren, Laney & Neely, Harriet E. Miers, Dallas, for appellees.
   KLINGEMAN, Justice.

This case involves the validity and priority of liens. At the trial the parties included three original contractors: Eddie Perkins and James Ballew, d/b/a Perkins Construction Company [Perkins]; Bill J. Cobb, d/b/a National Home and Commercial Services [Cobb]; and Winkler Construction Company [Winkler], the appellants herein; other contractors; the corporate owner at the time of construction and its president and general manager, Charles Burns; Lomas & Net-tleton Financial Corporation [Lomas], the holder of a deed of trust lien on the property involved which was foreclosed; the individual guarantors of such deed of trust loan; the present corporate owner of the subject property [Castle Hills]; and individuals who own shares in such corporation. Numerous varying claims were asserted by almost every party against almost every other party, but all these claims were resolved at the trial except those concerning the validity and priority of appellants’ purported liens. Trial was to a jury and judgment entered based in part on the jury’s verdict and in part on motions for directed verdict and motions for judgment non obstante veredicto. Only Perkins, Winkler, and Cobb appeal from such judgment.

By six points of error appellants contend that the trial court erred (1) in not granting the motion for judgment of Perkins, Cobb, and Winkler; (2) in not holding that Perkins had a valid mechanic’s and material-man’s lien; (3) in not holding that Cobb had a valid mechanic’s and materialman’s lien; (4) in not holding that Winkler had a valid mechanic’s and materialman’s lien; (5) in not holding that the liens of Perkins, Cobb, and Winkler had priority over the deed of trust lien of Lomas; and (6) in not ordering a foreclosure of the liens of Perkins, Cobb, and Winkler with the proceeds first being applied to the satisfaction of the appellants’ liens.

By a final point of error appellants assert that the unnecessary cost of the transcript should be assessed against appellee, Lomas.

Although all three appellants rely heavily on the “relation back” rule, hereinafter discussed, there are factual and other differ-enees in some respect in the three liens here involved, and for the purpose of this opinion they will be discussed under two general categories: (1) the Perkins and Cobb liens, and (2) the Winkler lien.

Charles Burns and investors, Leta J. Glas-scock and Gretchen Glasscock, executed an agreement to form the Ten-Fifteen Corporation for the purpose of building and operating an office building. Burns had discussed and generally planned the construction with an architect, Kearney Albaugh, and, among other things, had contacted Perkins to obtain some general cost figures regarding the construction of a “tilt-slab” type building, and had also contacted Wink-ler to obtain some cost figures for site and foundation work.

There was no general construction contract and no general contractor for construction of the building; appellants were original contractors who performed labor and delivered material directly for the owner. Although the evidence is disputed as to both date and nature, there is some evidence of agreements between Burns and the three appellant contractors with regard to work to be done; Perkins pertaining to the interior work, Winkler as to site and foundation work, and Cobb as to carpeting and tile work. In the summer of 1971 the Ten-Fifteen Corporation applied to Lomas for interim financing, the loan was closed, and on September 3, 1971, the Ten-Fifteen Corporation gave a deed of trust on a tract of approximately two acres to secure one note in the principal sum of $575,000.00, dated September 2,1971, payable to Lomas, which deed of trust was recorded on September 3, 1971. In connection with such loan, Lomas required that the incorporators sign the note as guarantors in their individual capacity, and that an existing vendor's lien against the property involved, in the amount of $14,346.63, be paid out of the loan’s first proceeds.

Actual construction work on the building did not commence until the latter part of September 1971, although there is some evidence that prior to that time Perkins did some site clearing work and that Winkler had been to the job site and set up batter boards. Cobb, who is in the floor covering business, did not get involved until the early part of 1972.

It was not until late 1972 that the Ten-Fifteen Corporation began faltering in payment to contractors, and the affidavits for liens relied on by appellants were filed in the late summer and fall of 1973.

On September 6, 1973, Lomas posted notice of foreclosure under its deed of trust, and on October 2, 1973, the trustee’s sale was held at which Lomas was the highest bidder, bidding on the property for $400,-000.00. Subsequent to the trustee’s sale, Lomas sold the property to Castle Hills Executive Plaza, Inc. [Castle Hills].

The Perkins and Cobb Liens

(A) The affidavit to fix lien relied on by Perkins is dated October 10, 1973, and asserts a claim and lien in the amount of $34,038.12 for labor and material for interi- or and office space work. It is not sworn to and does not contain an oath or jurat, but merely contains an acknowledgment. One of the affidavits relied on by Cobb is dated October 11,1973, and asserts a claim or lien in the amount of $3,165.60 for carpeting and floor work. This affidavit is not sworn to and does not contain an oath or jurat, but contains only an acknowledgment.

The Hardeman Act; Arts. 5452, 5453, 5455, et seq., Tex.Rev.Civ.Stat.Ann. (1958), provides generally the method for fixing liens by original contractors, subcontractors, and other persons entitled to a lien under the provisions of such Act. Article 5453 prescribes the method for fixing liens provided for under Art. 5452. In part, it provides that every original contractor, not later than 120 days after his indebtedness accrues, shall file his affidavit claiming a lien in the office of the county clerk. Article 5455 describes the form of claim to be used under these statutes and states, in part, that an affidavit claiming a lien filed for record by anyone claiming the benefit of the Act shall be signed by the claimant and requires a sworn statement of his claim.

Tex.Rev.Civ.Stat.Ann., art. 23, § 18 (1969), defines an affidavit as follows:

‘Affidavit’ means a statement in writing of a fact or facts signed by the party making it, and sworn to before some officer authorized to administer oaths, and officially certified to by such officer under his seal of office.

It is clear that the instrument filed for record by Perkins, dated October 10, 1973, and the instrument filed for record by Cobb, dated October 11, 1973, are not affidavits. They are not sworn to and have no oaths or jurats on them, but contain only acknowledgments. The two are not the same. Perkins v. Crittendon, 462 S.W.2d 565 (Tex.1970); Wilde v. Buchanan, 303 S.W.2d 518 (Tex.Civ.App. — Austin), writ ref’d n. r. e. 157 Tex. 606, 305 S.W.2d 778 (1957); Conn, Sherrod & Co. v. Tri-Elec. Supply Co., 535 S.W.2d 31 (Tex.Civ.App.— Tyler 1976, writ ref’d n. r. e.); Crockett v. Sampson, 439 S.W.2d 355 (Tex.Civ.App.— Austin 1969, no writ).

The two claims for liens above described were not sworn to and do not comply with the statute for fixing liens, and in our judgment, are not affidavits. They were fatally defective and of no force or effect.

(B) The other purported lien of Cobb’s was properly sworn to, however, it was not filed until August 1973, and it is necessarily dependent on the “relation back” rule in order to be effective.

The “relation back” rule was enunciated in Oriental Hotel Co. v. Griffiths, 88 Tex. 574, 33 S.W. 652 (1895), as follows:

When the building has been projected, and construction of it entered upon,— that is, constructed for, — the circumstances exist out of which all future contracts for labor and material necessary to its completion may arise, and for all such labor and material a common lien is given by the statute; and in this state of circumstances the lien to secure each has its ‘inception.’

In Sullivan v. Texas Briquett & Coal Co., 94 Tex. 541, 63 S.W. 307 (1901), the Supreme Court clarified the Oriental Hotel rule and restricted its application to the situation where a building has been projected and a contract for its construction executed by the owner and a contractor.

In McConnell v. Mortgage Investment Co. of El Paso, 157 Tex. 572, 305 S.W.2d 280 (1957), the Supreme Court reaffirmed the “relation back” rule for the time of inception of mechanic’s and material-man’s liens, providing that there is a general construction contract between the owner and contractor in existence calling for construction of the projected building. If there is such a general construction contract, the liens incurred in construction of the projected building are on a parity with each other and have their inception on a date such contract was executed. See Finger Furniture Co. v. Chase Manhattan Bank, 413 S.W.2d 131 (Tex.Civ.App. — San Antonio 1967, writ ref’d n. r. e.).

It is to be remembered that in the case before us there is no general construction contract or general contractor.

It is clear that any right that Cobb may have to a mechanic’s and materialman’s lien accrued and was perfected, if at all, long subsequent to the perfection of the deed of trust lien held by Lomas. Such affidavit and claim of lien was filed for record almost two years after the execution and recording of the Lomas deed of trust. Any right that Cobb may have to a mechanic’s and materi-alman’s lien is necessarily dependent on the date he first performed labor or delivered material to the job site. This occurred sometime in the year 1972, several months after the inception of the Lomas deed of trust lien. There is no contention that Cobb performed labor or delivered material prior to the recording of the deed of trust.

(C) With regard to Perkins’ purported lien, there is some testimony that one of Perkins’ employees did some clearing up work on the lot prior to the deed of trust, but no materials were delivered or any labor performed by Perkins pursuant to actual construction prior to November 1971. Clearing up the site is not sufficient to constitute the commencement of construction for purposes establishing the inception of the Perkins lien. S. K. Y. Investment Corp. v. H. E. Butt Grocery Co., 440 S.W.2d 885 (Tex.Civ.App. — Corpus Christi 1969, no writ); Rupp v. Earl H. Cline & Sons, Inc., 230 Md. 573, 188 A.2d 146, 1 A.L.R.3d 815 (1963), Annot., “What Constitutes ‘Commencement of Building Improvement’ for Purposes of Determining Accrual of Mechanics’ Lien,” 1 A.L.R.3d 822 (1965); H. B. Deal Const. Co. v. Labor Discount Center, Inc., 418 S.W.2d 940 (Mo.1967). Moreover, Perkins failed to request any issues or secure any jury finding that he commenced construction prior to September 3,1971, and that ground or recovery, if it ever existed, is now waived. Tex.R.Civ.P., Rule 279. We have already pointed out that the so called Perkins affidavit is not sworn to, and in our opinion does not constitute an affidavit or comply with the statute for fixing a lien.

The doctrine of “relation back" is of no help or benefit to either the Perkins or Cobb purported liens.

(D) Appellants, Perkins and Cobb, also failed to prove that their purported liens were timely filed. Article 5453 provides an original contractor entitled to a lien under the Hardeman Act must file an affidavit claiming such lien not later than 120 days after the indebtedness accrues, as defined in Art. 5467 of the Act. Absent a general contract or general contractor, each original contract must stand on its own footing. Although the record does not conclusively establish when the work upon which appellants now assert a lien was done, it is clear that all such work was commenced and finished long subsequent to the filing of the Perkins and Cobb affidavits for liens, and more than 120 days after such indebtednesses accrued.

The Winkler Lien

Winkler relies on an affidavit claiming a mechanic’s and materialman’s lien which is dated August 4, 1973, and subsequently filed. This instrument contains a proper oath or jurat.

(A) Winkler must and does rely on the doctrine of “relation back.” His position in this respect, disregarding other defects and irregularities in connection with his affidavit, is better founded than that of Perkins and Cobb in that he does have a jury finding that he delivered material and performed services before Lomas’ deed of trust was recorded. It is to be remembered, however, that there was no general construction contract or general contractor involved, and also that his affidavit for fixing a lien was not executed and filed until the latter part of 1973, almost two years after the recording of the deed of trust. We have heretofore discussed the doctrine of “relation back.” Under the record, any lien which Winkler might have must relate back to the date upon which the particular work for which he seeks a lien was performed. The work originally done by Winkler pursuant to the 1971 contract was fully performed and fully paid prior to the charge for which Winkler now seeks to assert a lien. The work which now serves as the basis for the Winkler claim in this action consists of paving, curbing, and sidewalk work. The work originally done at the job site by Winkler was completed and paid for long before the extra work here involved was ever done. Any lien asserted by Winkler in connection with the extra work must have its inception at the date the additional work was done, and does not relate back to any earlier point in time. Finger Furniture Co. v. Chase Manhattan Bank, supra; McConnell v. Mortgage Investment Co. of El Paso, supra.

(B) Winkler’s affidavit states that Winkler claims a mechanic’s and material-man’s lien on the following described property:

A 1.988 acre tract out of Tract 1, Castle Hills City Block 109, WOOTLIN SUBDIVISION, Bexar County, Texas.

Appellees assert that this description is not sufficiently definite or certain to identify the property on which the lien is to attach and is fatally defective. We agree. It is to be noted that there are no other words of identification of the property in the affidavit, and no where in such affidavit is there any statement as to who owns the property described therein, or any reference or statement with regard to the ownership of such property. The description is different and distinguishable from such cases as Pickett v. Bishop, 143 Tex. 207, 223 S.W.2d 222 (1949), wherein the Court said:

The settled rule in this state is that such a description, by reason of the use in the memorandum or contract of such words as ‘my property’, ‘my land’, or ‘owned by me’, is sufficient when it is shown by extrinsic evidence that the party to be charged and who has signed the contract or memorandum owns a tract and only one tract of land answering the description in the memorandum.

In Crow v. Davis, 435 S.W.2d 176 (Tex. Civ.App. — Waco 1968, writ ref’d n. r. e.), the property involved was described as follows: “. . . 9.1 acres out of Isaac B. Webb Survey, Abstract No. 1574 Dallas County.” The Court of Civil Appeals held that such description was “not so definite and certain upon its face as to be identified with reasonable certainty and is void.”

In Jones v. Mid-State Homes, Inc., 163 Tex. 229, 356 S.W.2d 923 (1962), the description contained in the instrument was as follows:

‘A certain lot in the Oltorf Addition of Marlin, Falls County, Texas, and being recorded in the City Hall at Marlin, Texas, and said lot being in Block No. 7 of said addition and being north of Roosevelt Street south of the City of Marlin, and being west of the Sally Dunbar property. Said property is about 52 by 150 feet in size.’

The Supreme Court held that the description contained in such instrument was wholly defective and fails to furnish a nucleus of description sufficient to identify the land claimed. The Court cited Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703 (1935), noting that the Court in such case, in holding the description was ineffective, said:

The rule is well settled that parol evidence cannot be introduced to vary or contradict the descriptive data of a deed. 14 Texas Jurisprudence § 251, pp. 1045, 1046. The descriptive words in an instrument should be given a liberal construction, in order that the writing may be upheld, and parol evidence is admitted to explain the descriptive words and to identify the land; but the instrument itself must contain a nucleus of description. The parol testimony must directly be connected with the descriptive data, and when more than this is required, the description is insufficient. 14 Texas Jurisprudence § 204, pp. 992, 993, and authorities cited.

In Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848 (1946), the Court held that the office of description in a deed, judgment, or other writing is to furnish means of identifying of the land and a description must be so definite upon the face of the instrument or in some other writing referred to that the lien can be identified with reasonable certainty, otherwise the instrument is void under the Statute of Frauds.

There is testimony in the record before us by the President of First American Title Company that Tract 1 consists of 12 acres of land. He also testified that he could not specifically locate the 1.988-acre tract on which a lien is sought to be imposed from the description contained in the Winkler instrument, and without further description in the instrument he had no way of knowing where such 1.988-acre tract of the 12-acre tract was located.

We have concluded that the description of land in the Winkler affidavit is too indefinite and uncertain to fix a valid lien upon the property involved in this suit and is fatally defective.

(C) The record does not establish that Winkler timely filed his affidavit claiming a mechanic’s and materialman’s lien. The labor and material for which the lien is sought was completed and finished before the end of December 1972. The affidavit for lien was filed in the latter part of 1973. We have heretofore discussed the question of timely filing an affidavit required to perfect a lien in connection with the Cobb and Perkins affidavits. The same discussion here applies, and the record does not establish that Winkler timely filed his lien.

(D) With regard to the priority of the Lomas deed of trust lien, September 3, 1971, it should be noted that at the time the property here involved was sold to Charles Burns, the vendor retained a vendor’s lien for a part of the purchase price. This property was subsequently conveyed to Morton Shefts and then to the Ten-Fifteen Corporation, and in all of such conveyances the respective grantees assumed the indebtedness secured by the vendor’s lien. The deed of trust to Lomas, here involved, secures a note in the amount of $575,000.00 given by the Ten-Fifteen Corporation, and out of the proceeds of this loan the outstanding vendor’s lien was paid off. The deed of trust contains this provision:

To the extent that proceeds of the Note [the deed of trust note] are used to pay any outstanding lien, charge or prior encumbrance against the herein-described premises, such proceeds have been advanced by Beneficiary [Lomas] at Grantors’ request; and Beneficiary shall be subrogated to any and all rights and liens owned or granted by any owner or holder of such outstanding liens, charges and prior encumbrances, irrespective of whether said liens, charges or encumbrances are released of record.

On September 3, 1971, by the terms of the deed of trust foreclosed by Lomas, Lo-mas became subrogated to the right of a holder of a vendor’s lien against the property covered in the deed of trust. This vendor’s lien had its inception long prior to the time any work was done by any of appellants. Foreclosure of the deed of trust was effective to foreclose the vendor’s lien and such foreclosure extinguished all the liens inferior to the vendor’s lien. See Irving Lumber Company v. Alltex’ Mortgage Company, 468 S.W.2d 341, 344 (Tex.1971).

Moreover, the deed of trust lien involved had its inception long prior to any purported liens of Perkins and Cobb. The foreclosure and sale under the Lomas deed of trust was effective to cut out any inferior liens on the land and the liens, if any, filed by appellants were wiped out and extinguished.

Appellants’ last point of error is that the unnecessary cost of the transcript should be assessed against appellee, Lomas. Appel-lees’ reply is that the cost of the transcript should be paid by the unsuccessful party.

The transcript contains 869 pages. Appellants filed a request for transcript in which it specifies certain designated material be included in such transcript. Appellee, Lomas, filed a designation which stated: “The District Clerk is to include in the transcript on appeal of the above referenced cause all documents in the file of the District Clerk in Cause No. 73-CI-11001.

An examination of the entire transcript reveals that there is considerable material therein that is unnecessary and in no way pertinent or material to the herein appeal. This Court has made some effort, without too much success, to have the parties designate or delineate the matter they consider material. This was done primarily in an effort to help us in working on this appeal, but is not of great benefit in determining the matter of cost of the transcript, which has already accrued.

Courts have considerable discretion in adjudging costs, and when unnecessary and useless matters are included in the transcript, the expenses thereof may be taxed as costs against the party responsible therefor, whether it is the appellant or ap-pellee, regardless of the right a party may have generally to recover the costs of appeal. 15 Tex.Jur.2d, Costs, § 100; Hernandez v. Castillo, 309 S.W.2d 938 (Tex.Civ. App. — San Antonio 1958, writ ref’d); Durrett v. Boger, 234 S.W.2d 898 (Tex.Civ.App. —Texarkana 1950, no writ).

From an examination of the entire transcript we have concluded that it would be fair and just to assess one-half of the cost of the transcript against appellee, Lo-mas, and one-half against appellants, and it is so ordered.

For the reasons hereinbefore set forth, we have concluded that none of appellants’ asserted liens were in force and effect at the time of the trial of this cause. The trial court correctly held that the property involved in this suit is not subject to the liens of Winkler, Perkins, or Cobb.

The judgment is affirmed.

BARROW, Chief Justice.

I concur in the result.

CADENA, J., concurs.

      . In answer to Special Issue No. 1, the jury found that Winkler commenced construction on the Ten-Fifteen Corporation job prior to September 4, 1971. The other answers to Special Issues are not here material to this appeal.

      . The judgment may be summarized as follows:
      a. Lomas recover judgment against Ten-Fifteen Corporation and Charles Bums for $121,-287.44, plus attorney’s fees and interest.
      b. Calhoun Electric Company recover judgment for $4,042.22 and costs of court against Lomas with a lien thereon in favor of Calhoun on certain specifically described removals.
      c. Except to the extent of the lien on certain removals in favor of Calhoun, no liens favoring any contractor remain on the property subject to this litigation.
      d. Lomas have judgment for full indemnification against Leta J. Glasscock and Gretchen Glasscock in the amount of such judgment in favor of Calhoun.
      e. Leta J. Glasscock have judgment against Charles Bums for $200,000.00, plus interest.
      f. Gretchen Glasscock have judgment against Charles Bums for $200,000.00, plus interest.
      g. Winkler have judgment against Ten-Fifteen Corporation and Charles Bums for $5,427.59, plus attorney’s fees and interest.
      h. Perkins have judgment against Ten-Fifteen Corporation and Charles Burns for $34,-038.12, plus attorney’s fees and interest.
      i. National Home and Commercial Services [Cobb] have judgment against Ten-Fifteen Corporation and Charles Bums for $5,205.92, plus attorney’s fees and interest.
      j. Calhoun have judgment against Ten-Fifteen Corporation and Charles Bums for $17,-726.00, plus attorney’s fees and interest.
      k. David Allen have judgment against Ten-Fifteen Corporation and Charles Bums for $3,953.70, plus attorney’s fees and interest.

      . An acknowledgment (that an instrument was executed for the purposes therein expressed) does not purport to be a certification that the person acknowledging it swears to the truth of the matters set out. Perkins v. Crittendon, supra.

      . In Pickett v. Bishop, supra, the Court of Civil Appeals held description of “20.709 acres out of John Stephens 640 acre survey in Tarrant County, Texas” to be insufficient, without taking into consideration the words “my property” in the body or face of the instrument. The Supreme Court held that such decision would have been correct if the only description of the land was that above quoted, but stated that the words “my property” in the body of the instrument are not to be ignored when it is shown by extrinsic evidence that the party to be charged and who signed the contract or memorandum owns a tract and only one tract answering the description in the memorandum.