Anderson v. Taylor

• Decision Date: 10 December 1959
• Docket Number: No. 35084,35084
• Court: Washington Supreme Court
• Parties: , 78 A.L.R.2d 1161 Nell C. ANDERSON, Executrix of the Estate of N. S. Anderson, Deceased, Appellant, v. Frank V. TAYLOR, Jr., and June Taylor, his wife; Clair Cunningham and Jane Doe Cunningham (true name unknown), his wife, Respondents.

Page 215

55 Wn.2d 215

347 P.2d 536, 78 A.L.R.2d 1161

Nell C. ANDERSON, Executrix of the Estate of N. S. Anderson, Deceased, Appellant, v. Frank V. TAYLOR, Jr., and June Taylor, his wife; Clair

Cunningham and Jane Doe Cunningham (true name

unknown), his wife, Respondents.

No. 35084.

Supreme Court of Washington, Department 2.

Dec. 10, 1959.

Hughes & Jeffers, Wenatchee, for appellant.

Earl W. Foster, Wenatchee, for respondent.

HILL, Judge.

The issue presented is whether a claim of lien was timely filed.

A contracted with C, the general contractor, to do the tile work on a residence which C was erecting for T.

C received substantial progress payments from T, including payment for the tile work, but made no payments to A.

A stopped work on August 20, 1956, at which time the reasonable value of the material he had furnished was $626.25, and the reasonable value of the labor was $949.

On September 6, 1956, C met with a number of creditors, subcontractor, materialmen, and with T's architect. C revealed his financial difficulties and his inability to proceed with the construction of the house; he repudiated all of his agreements with the subcontractors, including A, and his contract with T.

T then completed the construction of the house, making arrangements with various subcontractors--some of whom, including A, had been subcontractors under C. A agreed with T to complete the tile work for $720. T definitely refused to accept any obligation for the tile work already done by A under his agreement with C, as T had already paid C for this work on the basis of progress payments.

A resumed the tile work on September 25, 1956, and completed it November 5, 1956. T paid A the agreed $720, together with $122 for excess work and material not included in the price agreed upon by A and T.

A filed a lien December 12, 1956, in the amount of $949 for labor and $626.25 for material. It is agreed that this is for the labor and material furnished under the contract with C, and before A stopped work on August 20, 1956.

A's action to establish and foreclose his lien was dismissed.

A appeals.

It is stipulated that no notice was given the owner within ten days after the date of the first delivery of material or supplies, as required by RCW 60.04.020, so there is no contention that the lien can be sustained as to the $626.25 claimed for material.

It is stipulated that the net value of A's labor in doing the tile work on T's house prior to August 20, 1956, was $836.38, for which he has not been paid.

It is clear that C was personally liable to A for that amount; and that A had a right to a lien for labor on the residence belonging to T in that amount, if his claim of lien was timely filed.

There is no contention that A was entitled to a personal judgment against T, but only that he was entitled to a lien on T's residence under the lien statutes.

The sole issue is: Was A's claim of lien timely filed?

The trial court concluded that it was not, and we agree.

It was filed December 12, 1956, within the ninety days after A completed work on T's residence, November 5, 1956, but not within ninety days after he had completed work on his contract with C, August 20, 1956.

The following statement from 36 Am.Jur. 97, Mechanics' Liens, § 140, is quoted with approval in Swensson v. Carlton, 1943, 17 Wash.2d 396, 405, 135 P.2d 450, 454.

"As a general rule, after a contract is completed and closed, the time for filing a statement or claim of lien cannot be extended or the right revived by furnishing material or performing labor, upon a new contract, and tacking the same to the original contract."

Where the lien claimant is not a party to either of the contracts in question, as where he is furnishing material or labor to a contractor who has two or more contracts with an owner, or to a subcontractor who has two or more subcontracts in connection with the same project, the rule is not applicable unless the lien claimant was aware of the fact that there were two or more contracts. That was the decisive issue in our own case of Standard Lumber Co. v. Fields, 1947, 29 Wash.2d 327, 187 P.2d 283, 175 A.L.R. 309; 36 Am.Jur. 116, where we held that the burden...