Big Horn Lumber Company v. Davis

• Decision Date: 02 April 1906
• Citation: 14 Wyo. 455,84 P. 900
• Parties: BIG HORN LUMBER COMPANY v. DAVIS ET AL
• Court: Wyoming Supreme Court

84 P. 900

14 Wyo. 455

BIG HORN LUMBER COMPANY v. DAVIS ET AL

Supreme Court of Wyoming

April 2, 1906

Rehearing Denied 14 Wyo. 455 at 475.

ERROR to the District Court, Sheridan County, HON. CARROLL H PARMELEE, Judge.

The facts are stated in the opinion.

Reversed.

Burgess & Kutcher, for plaintiff in error.

In a running account the time for the filing of a lien under the mechanics' lien law begins to run when the last item of labor is performed, or of material is furnished, and on the date of the last item furnished on a running account the indebtedness accrues. (Livermore v. Wright, 33 M 31; Page v. Bettes, 17 Mo. App., 366; Mfg Co. v. Burns, 59 Mo. App., 391; Bolen Coal Co. v. Ryan, 48 Mo. App., 516; Heltzell v. Ry Co., 20 Mo. App., 435; Squires v. Fithian, 27 Mo. 134; Carson v. Steamboat, 16 Mo. 256; Stine v. Austin, 9 Mo. 558; Ring v. Jameson, 2 Mo. App., 584; Bruce v. Berg, 8 Mo. App., 204; Fire Ex. Co. v. Schwartz, 165 Mo. 171; 20 Ency. L. (2nd Ed.), 401, 402.) The phrase "after the indebtedness accrues" means after it had become due and payable by the terms of the contract. (Kennedy v. Burrier, 36 Mo. 128; Mfg. Co. v. Burns, 59 Mo. App., 391; Fire Ex. Co. v. Schwartz Bros., 165 Mo. 171; Cutclif v. McAnnally, 88 Ala. 509.) In a running account there is but one cause of action. (Waffle v. Short, 25 Kan. 503.) The indebtedness on which suit was brought could have accrued but once. The last item was a part of the entire contract; and its subsequent payment could not change the time of the accrual of the indebtedness. The account required to be filed to perfect a mechanics' lien must include the paid as well as the unpaid items, and such inclusion will not vitiate the lien. (20 Ency. L. (2nd Ed.), 507, 508; Sexton v. Weaver (Mass.), 6 N.E. 367; Wolfley v. Hughes, (Ariz.), 71 P. 933; Harman v. R. Co. (Cal.), 25 P. 124.) The payment of a particular item of a running account does not remove it from the account. (Stine v. Austin, 9 Mo. 554; Merchand v. Cook, 4 Iowa 115; Phillips Mech. Liens (3rd Ed.), Sec. 289.) The contention of plaintiff in error is fully supported by the case of Hugg v. Hintrager (Ia.), 45 N.W. 1035.

To constitute a waiver of a mechanics' lien the intention to waive must clearly appear. (Peck v. Bridwell, 10 Mo. App., 524; Jarvis v. State, 22 Colo. 309.) And the burden of proof is upon the one claiming a waiver. (Kirkwood v. Hoxie, 95 Mich. 62.) A waiver being an affirmative defense must be specially pleaded. (Phillips Code Pleading, Sec. 434.)

The inclusion of non-lienable items in a lien statement will not vitiate the lien as to the lienable items where the lienable and the non-lienable items can be ascertained and separated from each other. (Johnson v. Building Co., 23 Mo. App., 546, 549; Kershaw v. Fitzpatrick, 3 Mo. App., 575; Edgar v. Salisbury, 17 Mo. 273; McLaughlin v. Schwacker, 31 Mo. App., 365.) The mechanics' lien law is to be construed remedially. (Hayden v. Wulfing, 19 Mo. App., 357.) The plaintiff in error is entitled to an attorney's fee of $ 25 in the event that this court reverses the lower court. (Rev. Stat., Sec. 2897; Mulcahy v. Buckley, 100 Cal. 484.)

W. E. Mullen, for defendant in error, Sanders. S. P. Cadle, for defendant in error, Davis.

The acceptance of payment from Mrs. Sanders of the November items shows that they were not a part of the account of the contractor, Davis. A mechanics' lien is exclusively a creature of statute deriving its existence only from positive enactments. It is a remedy given by law which secures the preference provided for, but which does not exist, however equitable the claim may be, unless the party brings himself within the provisions of the statute and shows a substantial compliance with all its essential requirements. (Wyman v. Quayle, 9 Wyo. 330.)

The account filed as a lien was not a just and true account, as required by statute, since it mentioned the January payment of the November items as a general credit upon the account, instead of a satisfaction of the particular items. Counsel take advantage of the presence of these items in the lien statement for the purpose of setting up a legal fiction, which is used in a more or less elaborate argument on the question of when the account accrued, in support of which they cite a number of cases from the State of Missouri on the proposition that in a running account the time for the filing of a lien under the mechanics' lien law begins to run from the time when the last item of labor is performed, or, where material is furnished, on the date when the last item is furnished, that being when the indebtedness accrues. This principle is correct in the abstract but we do not believe the authorities cited support the contention of counsel. In the first place, the plaintiff, by making a settlement with Sanders, did not treat the items as being a part of the running account between plaintiff and Davis. The Missouri authorities cited in plaintiff's brief hold that the phrase "after indebtedness accrues" means after it has become payable by the terms of the contract. An indebtedness cannot remain due and payable after the same has been in fact paid.

What was the real situation? Davis had a running account with plaintiff for materials for the Sanders house, but how long did it run and what did it include? This seems to be the very gist of the question. We must draw our inferences from the facts admitted in the pleadings and the acts and situation of the parties. Davis had made a settlement with the plaintiff and virtually closed his account, and the plaintiff had accepted a check from Davis in settlement. But the Sanders house was not at that time finished, and there was a number of unpaid bills outstanding, which had been contracted by Davis. The check given by Davis was not paid, but that was not the fault of Sanders. No serious complaint appears to have been made by plaintiff about such non-payment until the fact was referred to in plaintiff's petition. When Sanders, in January, demanded a statement of her account, the plaintiff it seems considered the November items as not having been a part of the Davis account and settlement. At any rate the plaintiff elected to include them in an account which was by plaintiff considered to be owing to plaintiff by defendant Sanders. Sanders had been getting other materials there, which were used in the house and it is very clear that plaintiff considered the accounts at the time as being two separate and independent accounts, and all this occurred at a time before plaintiff's lien was filed, and some five or six weeks subsequent to the dishonor of the Davis check. The statement rendered by plaintiff to Sanders was a voluntary one and there was no dispute between plaintiff and Sanders. It was the intent of plaintiff at that time to collect from Sanders for everything not covered by the Davis settlement and check, and it was the undoubted intent of Sanders to pay plaintiff for everything she owed, and it was for that purpose she called for a statement. (Schulenburg v. Vrooman, 7 Mo. App., 137; Mfg. Co. v. Brown (Wash.), 36 P. 273; Lumber Co. v. Woods, 53 Iowa 552.)

Where payment is made on specific items of an account, such payment will not affect the running of the statute of limitations on other items of account. (19 Ency. L. (2nd Ed.), 326; White v. Castigan, 72 P. 178.) A creditor is bound to make application of credit as directed by the debtor. (Bank v. Prior, 8 U.S. 312; Crafford v. Pancort, 62 S.W. 559.) And such application will be considered in determining a mechanics' lien. (Spaulding v. Burke (Wash.), 74 P. 829.) Where one has an account against another, the whole or a part of which is barred by the statute of limitations, he can not take it all out by merely entering a credit. The credit to have such effect must be authorized and proved to have been intended as a payment on the account generally. (Carroll v. Forsyth, 69 Ill. 133; Crum v. Higold, 32 Ill.App. 282.)

POTTER, CHIEF JUSTICE. BEARD, J., concurs. SCOTT, J., did not sit, the case having been submitted before his appointment as a justice of this court.

OPINION

POTTER, CHIEF JUSTICE.

This is an action to recover the balance due upon an account for lumber and materials sold and delivered by the plaintiff, the Big Horn Lumber Company, to George Davis, one of the defendants, and used by him, as contractor, in the construction of a frame house for his co-defendant, Florence A. Sanders, and to enforce a mechanic's lien therefor upon said house and the premises upon which it is situated. The cause was tried in the District Court without a jury, resulting in a judgment for the plaintiff against the defendant Davis for the amount claimed to be due, and a dismissal of the action as to the defendant Sanders and the release of her said premises from plaintiff's alleged lien. The plaintiff complains of that judgment on error.

At the request of counsel the trial court stated separately in writing its conclusions of fact and law. No exception was reserved by either party to the findings of fact. The plaintiff excepted to the conclusions of law and the judgment, so far as they relate to the defendant Sanders; and, by the petition in error here, presents the single objection that, as between the plaintiff and defendant Sanders, the conclusions of law and judgment are not sustained by the findings of fact. The evidence is not brought into the record.

Upon the issues joined by the pleadings and the evidence submitted on the trial, the court made the following findings of fact:

1. That on or about September 9, 1904, the defendant George Davis entered into a contract with defendant Florence A. Sanders for the construction of a frame house on the east 50 feet of Lot 2, in Block 5 of Thurmond's Second...