Belnap v. Condon

• Decision Date: 04 August 1908
• Docket Number: 1945
• Citation: 97 P. 111,34 Utah 213
• Court: Utah Supreme Court
• Parties: BELNAP v. CONDON et al

97 P. 111

34 Utah 213

BELNAP v. CONDON et al

No. 1945

Supreme Court of Utah

August 4, 1908

APPEAL from District Court, Second District; J. A. Howell, Judge.

Suit by Hyrum Belnap against Lizzie Condon and another.From a judgment for plaintiff against defendantF. W. Becker, and in favor of defendant Condon, plaintiff appeals.

AFFIRMED.

J. D Skeen and W. L. Maginnis for appellant.

APPELLANT'S POINTS.

The authorities fully sustain the doctrine that where a contract of sale requires the vendee to make improvements on the land the vendor thereby either constitutes the vendee his agent to make the improvements, or contracts that the fee simple title to the land may be bound by a mechanic's lien to pay for the improvements.(20 Am. & Eng. Ency. of Law, 322, 27 Cyc 61, 34 Cent. Dig. 2171;Boisot on Mechanic's Liens, sec. 305;Henderson v. Connelly,123 Ill. 98, 14 N.E. 1, 5 Am. St. 490;Paulsen v. Manske,126 Ill. 72, 9 Am. St. 532;Sheehy v. Fulton,38 Neb. 691, 41 Am. St. 769;Shapleigh v. Hull[Colo.],41 P. 1108;Hendrie, etc., Co. v. Holy Cross, etc., Co.(Colo.),68 P. 785;Shearer v. Wilder[Kan.],43 P. 224;Hill v. Gill[Minn.],42 N.W. 294, following Henderson v. Connelly;Bohn Mfg. Co. v. Kountz[Neb.],46 N.W. 1123;Guiou v. Ryckman[Neb.],110 N.W. 759;Hickey v. Collom[Minn.],50 N.W. 918;Althene v. Tarbox, 50 N.W. 1019, 48 Minn. 18.)

J. H. Devine and Theo.Maloney for respondents.

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

The appellant instituted this action to foreclose a mechanic's lien.In his complaint he in substance alleges that the respondents were indebted to him in the sum of $ 218.61 for a balance due for certain materials furnished by him to them at their special instance and request, to be used in the construction of a certain building to be erected upon certain premises which are described in the complaint, and that said materials were furnished between the 29th day of August and the 26th day of October, 1904, and were used for the purposes aforesaid.These allegations are followed by the usual allegations in such cases with respect to the filing of a notice of intention to claim a lien upon the premises in question and with a prayer for foreclosure of the lien.The respondent Becker made no appearance in the action, and default was entered against him.The respondentMrs. Lizzie Condon answered the complaint, in which she denied that she was indebted to plaintiff, or that she purchased or authorized the purchase of the material for the purposes aforesaid, or for any purpose, and alleged that she is, and prior to the alleged furnishing of said materials was, the owner of the premises described in the complaint; that she, prior to said time, had sold said premises to the respondent Becker, and had agreed to convey the same to him upon payment of the purchase price therefor; and that no part of the purchase price had been paid.

Upon a hearing the court found the facts to be substantially as follows: (1) That the respondentMrs. Lizzie Condon was not indebted to the appellant in any sum.(2) That she was at all times mentioned in the complaint the owner in fee of the premises set forth in the complaint; that she at no time requested the appellant, or any one acting in his behalf, to furnish any material for the purposes of erecting a building upon the premises described in the complaint.(3) That on the 4th day of August, 1904, said Lizzie Condon entered into an agreement with the respondent Becker and wife, whereby she sold the premises described in the complaint to said Beckers, and upon the payment of the purchase price she agreed to convey the same to them by proper deed of conveyance.(4) That no part of the purchase price was paid upon said agreement.(5) That at and for a long time prior to the time that said material was furnished said Lizzie Condon was the owner in fee of said premises, and that during all of said time the deed evidencing the title in her was of record in Weber county, Utah, where the land is situate.(6) That appellant furnished lumber and material to respondent Becker of the value of $ 281.61, but that no part thereof was furnished or delivered to said Lizzie Condon, and that she never promised to pay said Belnap, or any one for him, for said lumber or material.There are further findings, but it is not deemed necessary to mention them here.Upon these findings the court made conclusions of law and entered judgment against the respondent Becker for the amount claimed by appellant, and in favor of respondentLizzie Condon, and awarded her costs.

The appellant now insists that the court erred in making findings 1, 2 and 6 upon the ground that the evidence does not support such findings, or any of them.The evidence upon which these findings are based, briefly stated, shows that some time in July, 1904, the respondent Becker and his wife orally agreed to purchase the premises in question from the respondentLizzie Condon for the agreed price of $ 625.On the 1st day of August following Lizzie Condon entered into a written contract with said Becker and his wife, whereby she agreed to convey said real estate to said Beckers upon the payment of said sum of $ 625, $ 25 of which was to be paid then, and the remainder on the 1st day of August, 1909, with interest at 6 per cent. per annum.It further appears from the evidence that the respondent Becker is a carpenter, and at the time of the purchase told Mrs. Condon that he wanted to build a shanty upon the property during the fall of 1904, and that he intended to build a better house on it the year following; that he said he had made arrangements with a Mr. Scowcroft for the lumber to put up the shanty; that, instead of getting lumber from Mr. Scowcroft, Becker in July or August, 1904, bought the lumber and some other material from the appellant; that Mrs. Condon did not know anything about Becker's purchase of lumber until some time in October following, when her attention was called to it by appellant; that the lumber and material were charged to Mr. Becker upon the books of appellant, but in October, when appellant ascertained the true condition of the ownership of the property and the contract of sale by Mrs. Condon to the Beckers, the account was changed upon the books so as to include Mrs. Condon.This change the appellant claims was made for the reason that Mrs. Condon, whom he went to see about the matter in the fall of 1904, told him that "if you will wait until the first of the year I will see that the whole thing is paid."This statement appellant claims was made by Mrs. Condon when he informed her that he thought he could hold her land for the material which he had sold to Mr. Becker for the building.Mrs. Condon denies that she made any such statement, but says that, when appellant claimed that he could hold the land, she told him that: "I will see about it, Mr. Belnap.I am very busy; . . . but I will let you know before the first of the year what I will do about it."After this, she says, she went to see her lawyer about the matter, and then phoned to Mr. Belnap and told him: "I found that he[appellant] could not take my land from me, and I refused to have any more bother about that lumber bill."

Mrs Condon further testified on cross-examination, and, as appellant seems specially to rely upon this part of her testimony, we set it forth in full as the same appears in appellant's abstract, as follows: "Q.Youwere perfectly willing to part with this lot for five years, and not get a cent for it?A.Yes, sir; he said he would put up a little shanty and live in it this winter, and he said: 'I am tired of paying rent, and most anything will do for us rather than pay rent.'They were to pay interest.Q.In five years from now that lot may be worth considerable more money.Didn't you know that he intended to put a house on it?A.He told me that he had made arrangements with Mr. Scowcroft for some lumber to put a little shanty on it this fall, and said: 'Next summer I am going to build a better place on it.'Q.Is it not true that it was your idea that they would take that property and put a good house on it, and then you would make some money on it, even if they didn't pay for it, and that was one of the considerations for your selling it on those terms--that he would put a house on it?A.Why, certainly.Q.So it is not at all probable that you would go to work and sell a bare lot of this kind, and take no pay on it, and no security, except the title to the lot itself, and agree to wait for five years for your pay, unless he would improve the lot?A.Well, I supposed of course, the man was able--was a carpenter, and would put up the building himself.Q.Youwanted a building put up there?A.Yes, sir.Q.So, if he failed to carry out his contract, you would have some little chance of getting your money back?A.As I said, he said he had made arrangements with Scowcroft's for some lumber; and the first I knew he had gotten lumber from Mr. Belnap was when Belnap called at my house.I never went down to Belnap's in my life.I went up to see Becker after I let him have the money, to see if he had put the water in, along the 1st of August; and I saw the water was in, but that was all.The 1st...