Bauman v. Metzger
| Decision Date | 13 February 1920 |
| Docket Number | No. 21,500.,21,500. |
| Citation | 145 Minn. 133 |
| Parties | H. J. BAUMAN v. LEOPOLD METZGER AND OTHERS. LEOPOLD METZGER AND OTHERS, APPELLANTS.<SMALL><SUP>1</SUP></SMALL> |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $261.86 and foreclose a mechanic's lien for the same. The case was tried before Rockwood, J., who made findings and ordered judgment as stated in the first paragraph of the opinion. From an order denying their motion for a new trial, defendants Metzger, Adelsheim, Moses and Lewis appealed. Reversed as to plaintiff; reversed in part and affirmed in part as to defendant Worthingham.
Simon Meyers, for appellants.
H. J. Green, J. M. Pulliam and C. C. Joslyn, for respondents.
This action was brought under the mechanic's lien law to enforce a claim for making alterations and repairs in a building known as the Hotel Landour in the city of Minneapolis. The trial court directed that judgment be entered against the owners of the building for the sum of $249.01, with interest, costs and disbursements in favor of plaintiff, and for the sum of $47.93, with interest, costs and disbursements in favor of defendant Worthingham, another lien claimant, and that these judgments be declared liens on the property and that the property be sold to satisfy such liens. The owners made a motion for a new trial and appealed from the order denying their motion.
The owners practically conceded plaintiff's claim, but as an offset thereto alleged and sought to prove a counterclaim in excess of the amount of plaintiff's claim. The court excluded this counterclaim, on the ground that it sounded in tort and did not arise out of the transaction pleaded in the complaint and was not connected with the subject of the action. The owners challenge this ruling as error.
A brief outline of the facts is necessary to understand the situation. The owners leased the ground floor of the building to Floan & Leveroos to be occupied as a store. Expensive alterations were necessary to fit it for their use and the owners agreed to bear half of this expense. Thereupon Floan & Leveroos made a written contract with plaintiff to make these alterations for the sum of $7,325. These alterations made minor changes necessary to other parts of the building, and the owners made a verbal contract with plaintiff to make these minor changes. These two contracts were made at the same time, and, although the written contract was between plaintiff and Floan & Leveroos only, plaintiff knew that it was made in furtherance of the agreement between Floan & Leveroos and the owners, and that the owners were to pay one-half of the contract price for this work. Plaintiff performed this contract and was paid in full therefor, Floan & Leveroos and the owners each paying one-half thereof. Plaintiff also performed the verbal contract and also performed some extra work on the building at the instance of the owners. After plaintiff had been paid for the work performed under the written contract, it was discovered that, in doing this work, plaintiff had disconnected the heating pipes in the building without draining the water therefrom, and that these pipes had frozen and burst, causing the major part of the damage sought to be recovered under the counterclaim. Damages were also claimed for injuries to the walls of the building, and to the papering and painting in some of the rooms, and also for loss of rent resulting from plaintiff's failure to complete the work under the written contract within the time stipulated therein. Claiming that the damages exceeded the value of the extra work and of the work done under the verbal contract, the owners refused to make any further payment, and plaintiff filed a lien for the extra work and for the work done under the verbal contract and brought this action to enforce it.
The written contract was between plaintiff and Floan & Leveroos only. The owners not being parties to this contract, the court correctly ruled that under the pleadings they were not in position to enforce a claim for damages predicated upon a breach of its terms. Consequently the claim for loss of rent was properly excluded, as it was based on an alleged breach of a stipulation in this written contract. But if plaintiff, in performing this contract, negligently caused damage to the building, the owners could maintain an action therefor in tort independently of the contract, and if this cause of action was "connected with the subject" of plaintiff's action, the owners were entitled to interpose it as a counterclaim in plaintiff's action. G. S. 1913, § 7757.
The statute permitting counterclaims is remedial in its nature and to be liberally construed to the end that the rights of both parties may be determined in a single action. What may be interposed as a counterclaim on the ground that it is "connected with the subject of the action" is not as clear and well defined as we might desire, although many cases involving particular counterclaims have been before the court, to a few of which we will refer.
In Barker v. Walbridge, 14 Minn. 351 (469), it is said that a cause of action in defendant, if connected with plaintiff's cause of action "so that the determination of plaintiff's cause of action would not do exact justice, without at the same time determining defendant's cause of action," is within the statute.
Goebel v. Hough, 26 Minn. 252, 2 N. W. 847, was an action for rent, and the defendant was permitted to interpose a counterclaim for damages for wrongfully entering upon and interfering with his use of the premises.
Lahiff v. Hennepin County C. B. & L. Assn. 61 Minn. 226, 63 N. W. 493, was an action by a mortgagor to reform the mortgage. The mortgagee interposed a counterclaim to foreclose the mortgage as reformed, and also interposed a second counterclaim to reform and foreclose a second mortgage on the same property. In sustaining the second counterclaim the court observed:
"The second mortgage is not one arising out of the contract or transaction set forth in the plaintiffs' complaint as the ground of the plaintiffs' claim or cause of action, but it is connected with the subject of the action, because it is a mortgage between the same parties upon the identical piece of land described in the first mortgage."
Hackett v. Kanne, 98 Minn. 240, 107 N. W. 1131, was an action to enjoin defendant from trespassing on plaintiff's land, and it was held that defendant could interpose a counterclaim to have the boundary line between his land and that of plaintiff determined.
Wild Rice Lumber Co. v. Benson, 114 Minn. 92, 130 N. W. 1, was an action to enjoin defendant from interfering with plaintiff's logging railroad. Defendant interposed two counterclaims — one for damages for wrongfully entering upon and interfering with his possession and use of the land over which the road passed, and one for damages on account of the negligent manner in which plaintiff operated its locomotive. It was held that the first counterclaim was proper, but that the second was not.
In the present case the purpose was to fit the ground floor of the building for the use of the tenants as a store, and to make such changes and repairs in other parts of the building as the changes in the ground floor rendered necessary. To accomplish this purpose plaintiff was employed to do the entire work, and two contracts, which between them were intended to cover the entire work, were made with him at the same time and apparently as parts of the same transaction, and the work under both was performed as parts of a single project. By his negligence, while engaged in performing the part of the work embraced in the written contract, plaintiff caused injury and damage to that portion of the building on which he performed the part of the work for which he now seeks to recover. We are of opinion that the claim for this damage was "connected with the subject of the action" within the meaning of the statute when liberally construed, and that the owners had the right to interpose it as a counterclaim.
Defendant Worthingham filed his lien statement on July 3, 1914, showing that the last item of his claim was furnished on April 7, 1914. He did not file an answer asserting his lien until August 12, 1915. As the statute provides that the answer shall be filed with the clerk of the court and that no other notice of the claims of the answering defendant need be given to other parties, the answer is of no effect until so filed. The statute further provides that no lien shall be enforced, unless asserted by complaint or answer within one year from the date of furnishing the last item set forth in the lien statement, and it becomes important to determine whether a lien ceases to exist at the end of the year, or whether this provision is in the nature of a statute of limitations, which is not effective unless asserted as a bar to the right to enforce the claim.
Section 7, chapter 90, of the Statutes of 1878 provided that the lien statement when filed within the prescribed time "shall, during all the period of time from the commencement of such labor or skilled services or the furnishing of such materials and machinery, until the expiration of two years after the completion of such skilled services or labor, or the furnishing of such materials or machinery, operate as a lien upon the several descriptions of structures and buildings, and upon the lots of ground on which they stand."
In Smith v. Hurd, 50 Minn. 503, 52 N. W. 922, 36 Am. St. 661, the court in holding that the summons had not been served on certain defendants in time to...
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