Arch Sellery, Inc. v. Simpson

• Citation: 346 P.2d 1068
• Decision Date: 24 November 1959
• Docket Number: No. 2898,2898
• Parties: ARCH SELLERY, INC., a Wyoming corporation, and Lierd and Miracle, a co-partnership, Appellants (Defendants below), v. Curt SIMPSON, doing business as Natrona Roofing Company, Appellee (Plaintiff below).
• Court: United States State Supreme Court of Wyoming

Page 1068

346 P.2d 1068

ARCH SELLERY, INC., a Wyoming corporation, and Lierd and Miracle, a co-partnership, Appellants (Defendants below), v. Curt SIMPSON, doing business as Natrona Roofing Company, Appellee (Plaintiff below).

No. 2898.

Supreme Court of Wyoming.

Nov. 24, 1959.

Houston G. Williams, Mahoney, Murphy & Emery, and Robert A. Burgess, Casper, for appellants.

Harry E. Leimback, Casper, for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

Plaintiff sued to foreclose a roofing contract lien filed May 8, 1957, and containing an allegation that the indebtedness accrued on March 29, 1957. The district court adjudged the lien to be proper and plaintiff entitled to foreclose. Defendants have appealed, urging that the judgment is not supported by the evidence and is contrary to law--the principal contention being that the roofing job was substantially completed on October 31, 1956, long prior to the ninety-day period following the accrual of indebtedness allowed for the filing of a lien statement under the provisions of § 55-205, W.C.S.1945, now § 29-11, W.S.1957.

The following facts related by plaintiff are not in substantial dispute:

Simpson took a subcontract from defendant corporation, Arch Sellery, a builder, now bankrupt, to roof a structure later known as the Shell Building on land belonging to defendants Lierd and Miracle. The subcontract was let in August 1956. The roofing work, which took about a week, was completed on October 31 with the exception of the sealing of the gravel stop ¹ which was placed around the circumference of the roof after the roof had been laid. This sealing, costing about thirty dollars, was a relatively small amount in comparison with the contract price of the roofing, $4,099.50. Sometimes the gravel stop is installed before the roof is laid, but in the instant case the sheet metal workers had not yet made the installation when the roofing work was finished. Simpson completed the laying of the roof on the last of October, billed Sellery for the full amount of the job, and was paid $2,049.75, one-half of the sum, on November 13. On December 10, one May who had taken over the roofing business from Simpson gave Sellery a ten-year guarantee on the roof. Simpson watched the building to see when the gravel stop was installed and saw that it was done about January 1. Between then and March 29 weather conditions were not such that he could do the sealing. On March 29 Lierd called Simpson and said his 'building was leaking on the west wall.' Simpson took for granted that the reference was to the Shell Building; and on that day, March 29, he and his successor May went onto the roof with a five gallon bucket of plastic, troweled around the scuppers--working for something less than an hour and using about a gallon of plastic, encountered water which prevented further sealing, and stopped. May agreed that for the sum of twenty-five dollars he would finish the sealing, but he never actually did it. A few days or a week later Simpson talked on the phone to Lierd who said then that he had not meant the Shell Building in his previous conversation, but had referred to his house on Casper Mountain, and indicated that he did not want Simpson to do anything further on the Shell Building. About three weeks later Simpson again talked on the phone with Lierd who said that the job was completed as far as Simpson was concerned because the owners had called one Pancratz, a roofer, to do the work.

The only variance from the above account of the occurrences was the testimony of Lierd who said that there were several telephone calls between him and Simpson in the winter of 1956 and the spring of 1957 with regard to a leak on the overhang of the roof of his home, that they talked about the Shell Building one day in the course of these calls, and that Simpson apparently knew the condition that had developed there, having given Lierd the impression that the leak was probably the fault of the tinner. He said he did not remember when the conversations about the Shell Building took place. He also said that he had discovered the leak in the Shell Building himself on March 25 and had called the general contractor to have him do something about it. He told of one other conversation in the late spring or early summer of 1957 when Simpson called about the bill not being paid. Defendants' testimony also showed that the building was occupied sometime in November 1956, that the tenant began to pay rent on December 15, and that Sellery submitted a final bill for the building and by December 17, 1956, was paid in full by the owners.

Bearing these facts in mind, we examine the pertinent statutes and cases interpreting them to determine the propriety of the judgment in the instant situation. Section 55-201, W.C.S.1945, now § 29-4, W.S.1957, ² allows a lien to those making the improvement or repair 'by virtue of any contract with the owner or proprietor'; and § 55-205, W.C.S.1945, now § 29-11, W.S.1957, refers to 'contractor' and 'subcontractor.' In Big Horn Lumber Co. v. Davis, 14 Wyo. 455, 84 P. 900, 85 P. 1048, 7 Ann.Cas. 940, Judge Potter discussed at some length the necessity of the existence of a contract to authorize the filing of a lien under the statute, indicating that such contract may be either express or implied. ³ He cited General Fire Extinguisher Co. v. Schwartz Bros. Commission Co., 165 Mo. 171, 65 S.W. 318, which held that when a building is substantially complete and is accepted by the owner the contractor cannot thereafter at his own instance perform some omitted part of the contract and thereby extend the period for filing the lien. ⁴ It is clear that in order that the lien in the instant case be valid it must have been based upon the contract and not be some act omitted or neglected to be performed at the time the original work was done.

Giving the evidence every inference which would be favorable to the successful party, we are unable to say that the indebtedness to the roofing subcontractor accrued later than early November 1956. Simpson rendered his bill about November 1, 1956, and this fact without more would seem to reasonably imply that the work was then complete. If work is not complete, the person rendering the bill would seem to be obligated to so indicate in some way. Were the work only partially completed, it would seem that the natural thing to do would have been to note the items which were not complete. It may, of course, be argued that Sellery's payment of only one-half of...