Arctic Lumber Co. v. Borden

• Decision Date: 02 February 1914
• Docket Number: 2282.
• Citation: 211 F. 50
• Parties: ARCTIC LUMBER CO. v. BORDEN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

211 F. 50

ARCTIC LUMBER CO. v. BORDEN et al.

No. 2282.

United States Court of Appeals, Ninth Circuit.

February 2, 1914

The appellant, a corporation, in a suit to foreclose a mechanic's lien, alleged in substance that on February 17, 1910, the appellee Borden was the owner of a certain lot in the town of Cordova, Alaska, and that on said date he leased the same to McCauley and Palmer upon the condition that the lessees should construct a building on the lot which building should revert to Borden, according to the terms of the lease; that on February 23, 1910, the lessees entered into an agreement with the appellant, under which the latter was to furnish material for the construction of said building; that in pursuance thereof lumber was furnished to the amount of $3,480.36, of which $2,236.57 remained unpaid that the appellant began to deliver the lumber on February 23, 1910, and continued so to do until August 6, 1910; that on September 6, 1910, within 30 days from the completion of the building, the appellant filed its claim of lien in accordance with the Code of Alaska. The answer of the appellee Borden denied that any material had been furnished by the appellant for said building since the month of April, 1910, and it alleged that the building was completed and occupied in that month. Upon the issues and the testimony, the court found as facts that the lessees, on or about February 23, 1910, entered into a contract with one Goodall for the erection of a building on the lot, at the agreed price of $1,900; that the building was completed by the contractor on the 14th day of April, 1910; and that at that time the ground floor of the building was occupied by the lessees, and the second floor was occupied as a rooming house; and that the material furnished by the appellant after April 14, 1910, was certain small lots of lumber purchased by the lessees for the purpose of making alterations, changes and repairs in said building which was no part of the original plan of the same; and that the small lots of lumber delivered on July 8th and August 6th were not shown to have been used in the construction of the building or in the alteration or repair of the same; that a period of more than 30 days had elapsed from the date of the completion of the building to the time of the filing of the lien in the recorder's office. On the ground that the notice of lien was not filed within 30 days from the completion of the building, as required by the law of Alaska, and the further ground that the appellee Borden on February 24, 1910, posted a notice in a conspicuous place on said lot notifying all persons that he would not be responsible for any material used in said building, a decree was entered dismissing the complaint.

R. J. Boryer, of Cordova, Alaska, and Kerr & McCord, of Seattle, Wash., for appellant.

J. C. Campbell and David L. Levy, both of San Francisco, Cal., and Brown & Lyons and E E. Ritchie, all of Valdez, Alaska, for appellee W. H. Borden.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District Judge.

GILBERT Circuit Judge (after stating the facts as above).

The court below, upon the consideration of the conflicting testimony of witnesses heard in open court, having found two important facts against the appellant, the only question for consideration here is whether the findings or the conclusions of law are based upon a mistaken view of the law, or an obvious error in applying the evidence. The appellant contends that, in finding that the lien notice was not filed within 30 days from the completion of the building, the court took the erroneous view that, because work upon the building had ceased and the building was occupied, it was completed, although a heating plant had not been installed therein and in other respects the building had not been finished. The lease provided that the building should be equipped with steam heat and radiators, 'said steam heat to be either furnished by a boiler in the building or from and through steam pipes from outside the building. ' The court below found that, after the execution of the lease, McCauley and Palmer, the lessees, abandoned the plan of installing a heating plant and other features in said building, as provided in said lease, 'and adopted different plans, in accordance with terms and plans set out in the written contract with Goodall. ' If this were a finding reached upon a consideration of conflicting evidence, it would be conclusive here. But it is not. The court assumed from the fact that the heating plant was not included in the contract which the lessees made with Goodall, a carpenter and builder, for the construction of the building, and from the fact that the lessees postponed the installation of the heating plant, that the agreement between the lessees and Borden had been changed. But Borden testified that no change had ever been made in his agreement with the lessees, and it is clear from the evidence that Goodall's contract was limited to the construction of the building only. It did not include the plumbing nor the heating plant, and it did not include several important features of the agreement between Borden and his lessees. It included only a part of what was agreed upon in the lease. Goodall testified that he could not recall that he had ever discussed with Borden the subject of the heating plant, 'only he (Borden) said that McCauley had agreed he would put in a steam heating plant at some future time,' and Goodall testified that the lessees did not intend to put in a heating plant right then; that it was a consideration to come later on. All this indicates that the installation of the heating plant was deferred for a short time. The manager of the appellant testified that, when McCauley first discussed with him the prices of lumber for the building, McCauley said he was going to build a two-story house, to be a rooming house upstairs, plastered and lighted, and wired for electric lights and telephone, 'and to contain a steam heating plant with radiators and pipes. ' Borden left for Juneau April 3, 1910, and did not return to Cordova until February 28, 1911. Feldman, a hardware merchant, who had an understanding with the lessees by which he was to furnish the heating plant, testified that Borden corresponded with him concerning the heating plant, and that in July he wrote Feldman a letter, 'in which he complained that I did not answer his questions, and to induce me to answer his questions he said I might have something to say when the heating plant is going to be put in. ' The evidence indicates that at the time when the lien notice was filed, not only had the steam heating plant not been installed, but the building was incomplete, in that upon one side it had not been covered with cedar siding, and that it had been but partially painted.

The Mechanic's Lien Law of Alaska is adopted from the lien law of Oregon, and before its adoption the Supreme Court of Oregon had held, in Avery v. Butler, 30 Or. 287, 47 P. 706, that:

'When work demanded by the terms of the original contract has been omitted, the final completion of the structure dates from the time such omissions are supplied by the builder at the request of the owner, although in the meantime the latter may have taken possession of the property, and that, while there is anything to do which it is the duty of the builder to perform under the terms of the contract, the work upon which he is engaged is not completed until this obligation is accomplished.'

And in Crane Co. v. Ellis, 58 Or. 299, 114 P. 475, in a case where the building contract provided that the building should be completed by December 1, 1906, and the work of construction was completed in February, 1907, except for the laying of a cement floor in the basement which, on account of the dampness of the ground was not put...