Blake v. Crystaline Lime Co.

• Decision Date: 04 August 1923
• Parties: J. W. BLAKE, Respondent, v. CRYSTALLINE LIME COMPANY, Appellant
• Court: Idaho Supreme Court

221 P. 1100

37 Idaho 637

J. W. BLAKE, Respondent, v. CRYSTALLINE LIME COMPANY, Appellant

Supreme Court of Idaho

August 4, 1923

LABOR LIEN-EXCESSIVE CLAIM-EFFECT OF-BAD FAITH.

1. The theory upon which a lien is given as a prior claim upon property is that the party claiming the lien has, either by his labor or by the materials furnished, contributed to the construction or improvement of the property upon which the lien is claimed.

2. Where a claim of lien is greatly in excess of the amount of actual labor performed, and it is not shown that such claim was made in good faith, the lien for the entire amount must fail.

APPEAL from the District Court of the Second Judicial District, for Clearwater County. Hon. Edgar C. Steele, Judge.

Action to foreclose labor liens. Judgment for plaintiff. Modified.

Judgment affirmed. Costs of this appeal awarded to appellant.

Tannahill & Leeper, for Appellant.

To be lienable, the work must have been actually performed in or on the mine. (C. S., sec. 7339.)

The plaintiff can only recover for work actually performed by lien claimants. (Labatt, Master and Servant, pars. 443, 444a 444b and 695; Lattemore v. Baldwin, 70 Cal. 40, 11 P. 395; Granz v. Lichtenheim, 84 Hun, 131, 32 N.Y.S 469; Paul v. Minneapolis Threshing Machine Co., 87 Mo.App. 647; Eden v. Sibverberg, 89 A.D. 259, 85 N.Y.S. 781; Sugg v. Blow, 17 Mo. 359; Seaburn v. Zachman, 99 A.D. 218, 90 N.Y.S. 1005; Pungs v. American Brake Beam Co., 128 Mich. 318, 87 N.W. 364; Lewis v. Albemarle & Raleigh R. Co., 95 N.C. 179.)

He who seeks equity must do equity. (Fales v. Weeter Lumber Co., 26 Idaho 367, 143 P. 526; Pomeroy's Eq. Jur., 4th ed., par. 385; 21 C. J., par. 152.)

Clay McNamee and Jas. L. Harn, for Respondent.

In case of conflict in the evidence the court will not disturb the findings or decree of the trial court, who had opportunity to see, observe and hear the witnesses upon the stand, and was conversant and acquainted with the circumstances surrounding their evidence. (Later v. Haywood, 15 Idaho 716, 99 P. 828; Western Moline Plow Co. v. Caldwell, 18 Idaho 463, 110 P. 533; Weeter Lumber Co. v. Fales, 20 Idaho 255, Ann. Cas. 1913A, 403, 118 P. 289; Salsbury v. Spofford, 22 Idaho 393, 126 P. 400; Brinton v. Steele, 23 Idaho 615, 131 P. 662; Shaw v. City of Nampa, 31 Idaho 347, 171 P. 1132.)

The lien for labor performed on a mining claim extends to the whole claim or to the property of the employer used in the construction or operation of the mine including both the realty and personal property. (Williams v. Mountaineer Gold Min. Co., 102 Cal. 134, 34 P. 702, 36 P. 388; Sheffield & B. Coal etc. Co. v. Gordon, 151 U.S. 285, 14 S.Ct. 343, 38 L.Ed. 164; Mitchell v. Burwell, 110 Iowa 10, 81 N.W. 193.)

DUNN, J. McCarthy and Wm. E. Lee, JJ., concur.

OPINION

DUNN, J.

This is an action to foreclose two labor liens, filed by Frank O'Conners and Roy Wilkinson, on November 17, 1920, against the property of defendant corporation. The plaintiff in this case is the assignee of O'Conners and Wilkinson.

It is alleged in the complaint as a first cause of action that O'Conners was employed by the defendant corporation, through its president, Ben L. Schultz, on April 1, 1920, as foreman of the company's lime or marble quarry near Oro Fino at an agreed salary of $ 225 per month, and that in pursuance of such agreement O'Conners performed services for a period of seven and one-half months, from April 1, 1920, to November 15, 1920, as foreman at $ 225 per month, or a total of $ 1,687.50, as set forth in the lien. As a second cause of action it is alleged that O'Conners, as agent of the defendant, employed Wilkinson as a miner and teamster, and that between April 7, 1920, and November 15, 1920, Wilkinson worked 146 1/4 days as a miner at $ 5 per day and 22 days as teamster at $ 8 per day, or a total of $ 907.25, the amount claimed in the lien.

The answer of defendant admits liability to O'Conners in the sum of $ 675, the same being for services from April 1, 1920, to July 1, 1920, at a salary of $ 225 per month, and admits liability to Wilkinson in the sum of $ 450, the same being for services from April 7, 1920, to July 1, 1920, a period of 74 days at $ 5, and for a period of ten days in July, 1920, at $ 8.

The court in its decree awarded $ 1,387.50, and $ 175 attorney's fees, on the claim of O'Conners, and $ 607.25, and $ 75 attorney's fees, on the claim of Wilkinson. From this decree, defendant appeals.

Appellant assigns as error the action of the court in entering this judgment, and imposing a lien to secure the amount allowed therein.

The evidence is very conflicting, both as to the representations alleged to have been made by Schultz to O'Conners and Wilkinson in regard to payment for services rendered, and as to the representations alleged to have been made to Schultz by O'Conners and Wilkinson in regard to the amount of work being done.

It was shown that during the entire time of O'Conners' employment no officer of the company visited the property, or made any investigation as to the work being done. Very little work of any kind was done on the property by O'Conners. In April he worked two shifts putting in timbers in the tunnel, and a few days blasting. On cross-examination he testified as follows:

"Q. After the 1st of May, 1920, what did you do at the lime kiln?

"A. We finished--done a few more days work on the tunnel, and after that there wasn't much of anything to do only look after the tunnel, and see it didn't cave in, and look after the tools, and take care of anybody Mr. Schultz might send up so as to be here so he could get me by phone."

Outside of a little plowing, this was the extent of the actual work. Misrepresentation on the part of O'Conners to the officers of the company as to the work he was accomplishing is alleged. This is denied by O'Conners, who states that the reason more work was not done was because the company did not furnish him with powder, and that he at one time was told by Mr. Schultz to discontinue work, but that his salary would go on just the same.

In letters written by Schultz to O'Conners at various times during the period of employment, Schultz acknowledged receipt of time sheets covering salary for O'Conners from April 1st to Nov. 1st, and...