Barrett v. Hampe

• Decision Date: 29 May 1952
• Docket Number: No. 35603,35603
• Citation: 53 N.W.2d 803,237 Minn. 80
• Parties: BARRETT v. HAMPE et al.
• Court: Minnesota Supreme Court

Page 803

53 N.W.2d 803

237 Minn. 80

BARRETT v. HAMPE et al.

No. 35603.

Supreme Court of Minnesota.

May 29, 1952.

Syllabus by the Court.

1. The evidence supports a finding by the trial court that the work done was one continuous work constituting one undertaking, so a finding by the trial court that a lien statement was filed within 90 days of completion of all the work covered by the lien statement is sustained.

2. The evidence sustains the finding of the trial court as to the reasonable value of material and labor furnished by the lien claimant.

3. Since the amount of attorneys' fees allowed does not appear to be unreasonable, the trial court's allowance is sustained.

4. Since M.S.A. § 514.14 does not expressly provide for attorneys' fees on appeal in a mechanic's lien case, Held that such fees are not to be allowed.

Nilva, Frisch & Schway, St. Paul, for appellants.

Sanborn, Jackson & Biorn, St. Paul, for respondent.

LORING, Chief Justice.

This is an action to foreclose a mechanic's lien on property located at 1815 Scheffer avenue, St. Paul. The district court for Ramsey county gave judgment for plaintiff for $5,644.62 and decreed that plaintiff is entitled to a lien on the property.

In May 1947, Benjamin Specktor, then owner of the unimproved property, requested plaintiff to submit a bid for masonry brickwork for the house to be built on the property. June 4, 1947, plaintiff submitted his bid, which specifically excluded any retaining walls on the grounds. There is some testimony that the plans at that time indicated there should be retaining walls, but no specifications for them were given. The bid ($3,150) was accepted, and work was commenced by plaintiff June 11, 1947. From time to time, changes were made and extras added, but the work done pursuant to the bid was completed September 29, 1948.

September 27, 1948, Specktor entered into an earnest money contract with defendants Hampe for conveyance of the property to them. At this time, various things were left to be done on the house, such as putting in tile, completing the laundry room, putting in a heater, and finishing a vegetable cellar and a cedar chest. The contract between Hampe and Specktor required that the latter do 15 different things to complete the improvement, including construction of a retaining wall in the rear. October 9, 1948, plaintiff and Specktor agreed that plaintiff would build the retaining wall. There was testimony--and the trial court found--that plaintiff and Specktor discussed building the retaining wall as early as the latter part of 1946. Work on the wall was completed March 8, 1949, and plaintiff filed a lien statement June 3, 1949, covering all the work done by him on the premises.

It is to be noted that the lien statement was filed within 90 days after completion of the retaining wall, but not within 90 days of the completion of the work done by plaintiff under the original contract.

Defendant Twin City Federal Savings & Loan Association (hereinafter referred to as Twin City Federal) became a mortgagee of the premises on August 9, 1947. Since work was commenced by plaintiff on June 11, 1947, if plaintiff's lien statement was filed in time to preserve his lien for all the work done, Twin City Federal's mortgage is subsequent to the lien. The trial court so found in favor of plaintiff, and Twin City Federal has not appealed.

On this appeal from the judgment in favor of plaintiff, there are four questions presented for decision:

(1) Since the lien statement was filed within 90 days of the completion of the retaining wall, was the trial court justified in giving plaintiff a lien for the amount of all the work done by him?

(2) Does the evidence in the record sustain the finding of the trial court that the reasonable value of the work done by plaintiff was $4,344.08?

(3) Does the evidence sustain the finding of the trial court that the reasonable value of plaintiff's attorneys' services was $750?

(4) May plaintiff be awarded attorneys' fees on this appeal? ¹

1. In Paine & Nixon Co. v. Dahlvick, 136 Minn. 57, 58, 161 N.W. 257, we stated as a general rule:

'* * * The only question is whether the finding is sustained by the evidence. If the work being done is one continuous work constituting one job, though there are several agreements for the furnishing of different materials, each being a separate contract for some part of the general work, a lien claim filed within 90 days after the last item preserves a lien for all. (Citing cases.) If the contracts are separate and distinct and unrelated, not in connection with a continuous work or job, a lien claim filed does not preserve a lien upon materials furnished prior to the 90 days.' ²

The question is not what kind of contract was entered into, but whether the materials furnished or the work performed was all pursuant to one job as a continuous undertaking. American Bridge Co. v. Honstain, 120 Minn. 329, 139 N.W. 619. In Villaume Box & Lumber Co. v. Condon, 146 Minn. 156, 178 N.W. 492, we recognized that there comes a time when additional work may not be considered as connected with previous work. In that case, although the trial court found that the work was connected, we reversed and held that it was not, saying, 146 Minn. 157, 178 N.W. 493:

'When the owner determines to add something to the building after its construction has been completed and it has been delivered and accepted, materials furnished to the contractor to make the addition and not to accomplish the general purpose of the original contract are considered to be furnished under a new and independent contract.'

That case is to be distinguished from the one at bar. As stated above, plaintiff and Specktor talked about retaining walls from October 1946 on. There is also testimony that when plaintiff asked Specktor for money, after completing the work other than that on the retaining wall, Specktor told him over the telephone that 'we can't get any money until we get this retaining wall in back.'

In Minneapolis Trust Co. v. Great Northern Ry. Co., 74 Minn. 30, 33, 76 N.W. 953, 954, see, also, Id. 81 Minn. 28, 83 N.W. 463, this court said:

'* * * True, Ring & Tobin had completed their work properly, and were not obliged to furnish any more stone. But the railway companies demanded the change, and consented to the furnishing of more material in order to make that change. By demanding the additional material before making payment, Maxfield assumed that Ring & Tobin had not completed their contract, and is now estopped to say that they had.'

The testimony in the case at bar was to the effect that the rear retaining wall was connected to a side retaining wall, which supported a porch to the house, and Specktor testified that he agreed to pay for all when the wall was finished. We hold that the evidence sustains the finding of the trial court that this was a continuous undertaking. ³

Defendants cite Paine & Nixon Co. v. Dahlvick, 136 Minn. 57, 161 N.W. 257, and A. Y. McDonald Mfg. Co. v. Newstone, 187 Minn. 237, 244 N.W. 806. In each of those cases the trial court found no connected undertaking, and these findings were upheld by this court. They support defendants' contentions not at all. They go only to show that the question is whether the findings are supported by the evidence. Other cases cited by defendants are to be distinguished. In their argument, they attempted to find a distinction between cases in which the lien claimant is a materialman and those in which the claim is for the value of services. We can see no basis for such distinction.

2. Defendants attack the finding of the trial court as to the reasonable value of the material and labor furnished. On the trial, plaintiff started to prove the reasonable value of all the work, including that under the original bid. Defendants admitted the amount for the work originally estimated as follows:

'Mr. Schway (defendants' attorney): If the Court please, I would like to object to any further interrogating along this line. We have admitted, rather than take a lot of time going through all these items, we have admitted that the work that he originally estimated of $3150.00 was substantially done plus some more work. I think we are taking the Court's time needlessly. There is no question in our mind that he did perform work.'

Pursuant to this admission, the court indicated to plaintiff that he need give evidence only as to the reasonable value of extra work. On the stand, plaintiff went into great detail as to the extra work done and its reasonable value. This is best set out in columnar form. The information is taken from the record, and reference thereto is by page numbers.

Extras

                (a) Front changed from brick to stone (pp. 65, 68) ......... $210.00
                (b) Front Steps (pp. 69-70) .................................. 17.50
                (c) Side of front vestibule changed from brick to
                       stone after half completed (pp. 70-73)
                          for the stone ........................... $100.00
                          for removal of brick already laid ......... 15.00   115.00
                                                                    -------
                (d) Front of garage doors (pp. 74-77) ........................ 81.60
                (e) Gable rear of house--brick added (pp. 77-80) ............. 76.90
                (f) East gable bricked (pp.80-82) ........................... 105.56
                (g) Additional fill for floors (pp. 83-87)
                      for sand ..................................... $ 1.00
                      for labor ..................................... 37.20
                      for truck ...................................... 5.00
                      extra cost of concrete ........................ 10.00    53.20
                                                                    -------
                (h) Extra cement in driveway continuation (pp
                      87-89) ................................................. 72.60
                (i) Additional step on Scheffer avenue (p. 92) ............... 10.00
                (j) Side steps and platform (pp. 94-98) ..................... 124.00
                (k) Bay window (pp. 99-100)

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