Berry v. Soelen, 3495.
| Decision Date | 09 January 1931 |
| Docket Number | No. 3495.,3495. |
| Citation | 295 P. 301,35 N.M. 259 |
| Parties | BERRYv.VAN SOELEN et al. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Where amount due was about $60, claimant's overstatement of amount by $88 as result of gross negligence defeated mechanic's lien in toto.
Mechanic's lien defeated in toto where amount due was largely overstated through gross negligence of claimant.
Appeal from District Court, Santa Fé County; Holloman, Judge.
Action by E. R. Berry against Theodore Van Soelen and wife. From a decree for plaintiff, defendants appeal.
Reversed and remanded, with directions.
Mechanic's lien defeated in toto where amount due was largely overstated through gross negligence of claimant.
E. R. Wright, of Santa Fé, for appellants.
W. A. Gillenwater, of Santa Fé, for appellee.
The judgment appealed from established and foreclosed a mechanic's lien and decreed a sale of real estate to satisfy it.
Appellee filed a claim of lien upon a plastering contract, alleging that his compensation had been fixed at $540, or at such lesser sum as should represent actual cost of labor and materials, plus 10 per cent. He stated that the actual cost of labor and materials plus 10 per cent. had been $510, not including cement to the amount of $35 furnished by appellants, for which they were entitled to a deduction from the lump sum stated. Thus, the compensation amounting to less upon the lump sum basis than upon the cost plus basis, claim was made for $155, the balance due on the lump sum basis, after crediting cash payments of $350.
Suing to establish and foreclose the lien thus claimed, appellee itemized in his complaint labor costs of $326.56, material costs of $124, an expense item of $10, and his 10 per cent. “commission” at $45.25.
After hearing the evidence, the trial court disallowed $88 of the labor items claimed and established a lien for $65.51 as the balance due on the contract, plus the cost of filing the lien and $100 as attorney's fee. By remittitur the balance due on the contract was reduced to $59.82.
The principal contention made here is that the court erred in establishing any lien. Of the numerous grounds urged, one only need be considered, viz. that appellee's overstatement of the amount due him vitiated the claim of lien in toto.
In so small a claim an overstatement of $88 is considerable. The total cost of labor and materials, stated at $450.56 and found to be $362.58, was thus overstated 24 per cent. The cost of labor, stated at $326.56, and found to be $238.56, was overstated 37 per cent. The balance unpaid, stated at $155 and found to be $59.82 was overstated 160 per cent.
To determine the legal result of such overstatement, both counsel cite and rely upon the annotation, “Effect of Filing an Excessive Mechanic's Lien,” 29 L. R. A. (N. S.) 305. We make no attempt to classify or harmonize the decisions there reviewed. But, having in mind the several rules and illustrations there set forth, we shall make brief disposition of the case in hand.
The principal controversy was whether labor checks given by appellee on Saturday. September 11th, for that week, were for labor on appellants' job or elsewhere. Appellee claimed that the job was commenced Monday morning September 6th, while appellants claim that the laborers did not appear...
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