Barnes v. Montana Lumber & Hardware Co.

Decision Date12 June 1923
Docket Number5239.
Citation216 P. 335,67 Mont. 481
PartiesBARNES v. MONTANA LUMBER & HARDWARE CO.
CourtMontana Supreme Court

Commissioners' Opinion.

Appeal from District Court, Fergus County; Rudolf Von Tobel, Judge.

Action by S.W. Barnes, trustee of the estate of Robert E. Garretson bankrupt, against the Montana Lumber & Hardware Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Belden & De Kalb, of Lewistown, for appellant.

Jack Briscoe, of Lewistown, for respondent.

BENNETT C.

This action was determined in the court below on an agreed statement of facts. Plaintiff S.W. Barnes, trustee of the estate of Robert E. Garretson, bankrupt, sued defendant Montana Lumber & Hardware Company, a corporation, for the conversion of a certain threshing machine and water tank which was claimed by plaintiff as a portion of the bankrupt estate. The facts are that defendant had furnished to the bankrupt certain materials which were used by him in the repair of the threshing outfit, for which materials defendant had not been paid. In an attempt to secure the payment of the amount due, defendant had caused to be executed and filed, in manner and form as provided by sections 8339 et seq., Rev. Codes 1921, a claim of lien upon the threshing outfit. Prior to the appointment and qualification of plaintiff as trustee of the bankrupt estate, defendant had commenced an action seeking a foreclosure of the lien it was asserting on the property involved herein. Without the presence of plaintiff as a party defendant, and on default of the defendant therein, a decree was obtained which purported to adjudicate that a lien existed on the property, and to foreclose the same. As a result of the decree, defendant caused the property to be sold to satisfy the lien and indebtedness. Defendant bid in the property and sold it to another. Thereafter this action was commenced, which resulted in a judgment for plaintiff, from which defendant appealed.

The only question presented by the appeal which requires notice is whether or not the judgment in the former action between the defendant herein and the bankrupt was void. Since we are of the opinion that it was, we will not discuss any other phase of the case.

The lien was claimed on the threshing outfit under the provisions of section 8339, Rev. Codes 1921, and by virtue of a compliance with the succeeding sections. It is claimed by defendant that under the rule heretofore announced by this court many times it is not necessary that the owner of property on which a lien is claimed have any interest in the land on which the same may be situated and that under a proper construction of section 8339, supra, the defendant had a lien upon the property involved. To reach this conclusion, it is necessary to determine that the word "structure," as used in the cited section, means a machine--something constructed--a combination of related parts. It is true that the word taken by itself is susceptible of such a definition. The question is whether or not it means that in the place it is used. We think not. A reading of section 8339 discloses that, with the possible exception of the word "structure," every class of property therein enumerated is one which is of, appurtenant to, or attached to land. It would be a strained construction to say that the use of the word "structure" gave a lien upon a watch, a bicycle, a typewriter, an automobile, or a threshing outfit, merely because one of the definitions of the word makes such possible.

In the case of State v. Moran, 24 Mont. 433, 63 P. 390, this court, quoting from a Wisconsin case used the language, "Noscitur a sociis is an old and safe rule of construction," and the rule was applied. The rule was also invoked in McGinniss v. B. & M. Con. Cop. & Silver Co., 29 Mont. 428, 75 P. 89, and Morrison v. Ornbaum, 30 Mont. 111, 75 P. 953. This rule for ascertaining the meaning of a word by referring to the meaning of words associated with it is commented upon in 25 R. C. L. p. 995, section 239:

"It is a familiar rule in the construction of terms to apply to them the meaning naturally attaching to them from their context. Noscitur a sociis is a rule of construction applicable to all written instruments and statutes."

As stated in Wharton's Law Lexicon:

This is "a test of construction of a single word: Where there is a string of words * * * and the meaning of one of them is doubtful that meaning is given to it which shares with the other words."

The doctrine that a word or phrase may have different meanings in different connections is applied by the United States Supreme Court in the cases of Church of the Holy Trinity v United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226, and American Security Co. v. District of Columbia, 224 U.S. 491, 32 S.Ct. 553, 56 L.Ed. 856. When we have a case such as the one at bar, where all other associated terms share the common element of being attached to, appurtenant to, or of the land we believe the rule is particularly applicable. We are therefore of the opinion that, as used in section 8339, supra, the word "structure" must be held to partake of the element which is common to the associated terms, notwithstanding other...

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