Boise-Payette Lumber Co. v. Bickel

• Decision Date: 01 March 1926
• Citation: 245 P. 92,42 Idaho 245
• Parties: BOISE PAYETTE LUMBER COMPANY, a Corporation, Appellant, v. ANNA C. BICKEL and PAUL S. A. BICKEL, Wife and Husband; IDAHO GAME BREEDERS ASSOCIATION, a Corporation; BUD GRIFFEN; FEDERAL LAND BANK OF SPOKANE, WASHINGTON, a Corporation, Respondents
• Court: Idaho Supreme Court

245 P. 92

42 Idaho 245

BOISE PAYETTE LUMBER COMPANY, a Corporation, Appellant, v. ANNA C. BICKEL and PAUL S. A. BICKEL, Wife and Husband; IDAHO GAME BREEDERS ASSOCIATION, a Corporation; BUD GRIFFEN; FEDERAL LAND BANK OF SPOKANE, WASHINGTON, a Corporation, Respondents

Supreme Court of Idaho

March 1, 1926

MATERIALMAN'S LIEN - LIEN FOR MATERIALS FURNISHED TO LICENSEE OF LAND OWNER.

1. Finding by jury and court, sustained by ample evidence, will not be disturbed on appeal.

2. In action to foreclose materialman's lien, evidence held to sustain finding that owners did not cause construction of improvements for which lien was claimed, so as to subject lands to lien under C. S., sec. 7344.

3. Where one not in possession of land was permitted to build structures under license from option holders, consented to by owners, the rule that one encouraging act to be done cannot afterwards exercise his legal right in opposition to such consent, if other party was induced to change position to his pecuniary prejudice, cannot be invoked so as to create materialman's lien on land, since there was no fraud actual or constructive, by legal owners.

4. One furnishing materials to person constructing buildings on land owned by another was bound to take notice of owner's record title relative to right of materialman's lien.

5. Findings and decree of trial court that materialman furnishing materials to one for construction on land belonging to another was entitled to judgment against one to whom materials were furnished, and denying lien against land held sustained by evidence.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. H. F. Ensign, Judge.

Action to foreclose materialman's lien. Judgment declaring lienor entitled to proceeds from sale of personal property and denying lien on real property. Affirmed.

Affirmed. Costs to respondents.

Bothwell & Chapman, for Appellant.

The building material was furnished by appellant at the instance of the respondents Bickel, and their lands are subject to a lien therefor. (C. S., secs. 7339, 7344; Hill v. Twin Falls Salmon River Land & Water Co., 22 Idaho 274, 125 P. 204; Steltz v. The Armory Company, Ltd., 15 Idaho 551, 99 P. 98, 20 L. R. A., N. S., 872; Weeter Lumber Co v. Fales, 20 Idaho 255, Ann. Cas. 1913A, 403, 118 P. 289; McGill v. McAdoo, 35 Idaho 283, 206 P. 1057; Eberle v. Drennan, 40 Okla. 59, 136 P. 162, 51 L. R. A., N. S., 68; Beach v. Huntsman, 42 Ind.App. 205, 85 N.E. 523; Boyer v. Keller, 258 Ill. 106, Ann. Cas. 1916B, 628, 101 N.E. 237; Hydraulic Press Brick Co. v. Winn Constructing Co. (Mo. App.), 219 S.W. 681; Love Bros. v. Mardis, 189 Iowa 350, 176 N.W. 616; City Lumber Co. v. Brown, 46 Cal.App. 603, 189 P. 830; Myers v. Strowbridge Estate Co., 82 Ore. 29, 160 P. 135; Suddard v. Lewis, 175 A.D. 749, 162 N.Y.S. 493; Vickery v. Richardson, 189 Mass. 53, 75 N.E. 136.)

The lien of the appellant for material furnished in the construction of such improvements attaches to and binds the interests of the respondents Bickel in and to such lands even though the respondent, Idaho Game Breeders Association, a corporation, thereafter forfeited and failed to complete its contract. (Williamson v. Shank, 41 Ind.App. 513, 83 N.E. 641; Independent Meat Co. v. Crane Co., 21 Ariz. 1, 184 P. 992; McGinn v. Pritchard, 32 Cal.App. 75, 161 P. 1171; Gebhard v. Short, 10 Del. 353, 92 A. 253; Miller v. Mead, 127 N.Y. 544, 28 N.E. 387, 13 L. R. A. 701; Bermingham v. Gill, 164 Ill.App. 536.)

The respondents Bickel and Idaho Game Breeders Association in the improvement of this property, for which appellant furnished material, were engaged in a joint enterprise, since the property could not be used for the purpose of such joint enterprise without the making of these extensive improvements and alterations thereon, which the Bickels authorized, consented to and of which they had actual and active knowledge. It follows that their interest in and to this real estate is subject to appellant's lien. (Brown v. Walker, 100 Kan. 542, 164 P. 1092; Harte v. Shukert, 94 Neb. 210, 142 N.W. 517; Jackson v. Hooper, 76 N.J. Eq. 185, 74 A. 130; Jones v. Walker, 51 Misc. 624, 101 N.Y.S. 22, 23; Rice v. Peters, 128 A.D. 776, 113 N.Y.S. 40; Voegtlin v. Bowdoin, 54 Misc. 254, 104 N.Y.S. 394.)

S. T. Hamilton, for Respondents, files no brief.

VARIAN, District Judge. William A. Lee, C. J., and Wm. E. Lee and Taylor, JJ., concur.

OPINION

VARIAN, District Judge.

Appellant, plaintiff in the court below, brought this action to foreclose a materialman's lien for certain lumber and material furnished by it. Twenty-one interrogatories submitted to the jury were answered favorably to the contentions of respondents. The court made findings of fact and conclusions of law, treating the jury's action as advisory merely.

The court found that on or about February 11, 1920, appellant and respondent Idaho Game Breeders Association entered into an agreement, which was known to Anna C. and Paul S. A. Bickel, whereby appellant agreed to furnish said respondent association material for the erection of a certain incubator-house, poultry pens and houses, fence and game pens, for game-breeding purposes, for which said material respondent association agreed to pay appellant the sum of $ 2,831.45 within thirty days after the last of said material was furnished; that said material was furnished and no part of said sum has been paid except the sum of $ 13.35; that the land upon which said improvements were made, during all of the times said material was furnished, was the community property of the respondents Anna C. and Paul S. A. Bickel, who were the owners and reputed owners thereof, and stood on the records in the name of Anna C. Bickel; that respondent Paul S. A. Bickel, during all of said times, was a director of respondent Idaho Game Breeders Association, and was instrumental in the employment of one Hulit by said association; that said Bickel during said times and prior thereto desired to sell said real property, including the entire Bickel ranch of about 360 acres, to respondent association, and that it was understood by said respondent Bickel that such sale depended upon the successful operation of respondent association and in influencing the public to become owners of the stock of said association; that the respondent Anna C. Bickel was present and residing upon the real property before mentioned at the time the first material was furnished by appellant, knew the purposes for which said material was furnished and knew that if the association should be successful the property would be sold at a price satisfactory to herself and husband; that during the time the material was being furnished, respondent Paul S. A. Bickel also knew it was being furnished and expected, if the association was successful in interesting the public in the propagation of game in this state, that the said real property would be purchased by the association.

The court further found that the material was furnished for the purpose of propagation of game on the real property belonging to the Bickels and that appellant began to furnish material for said structures on February 11, 1920, and continued to furnish said material up to and including April 30, 1920, the date on which the last of said material was furnished and appellant completed its contract. The court further found that notice of claim of lien was filed within the time limited by statute and duly recorded; that respondent Idaho Game Breeders Association had no property, right, title, estate or interest in or to the real property on which said structures were situate other than the permission of said respondents Bickel to construct said improvements and structures on said real property; that all of the lands described in the court's findings are necessary for the convenient use and occupation of the said improvements, and that said improvements and structures built on the real property described in the findings are practically valueless and useless for any other purpose than that for which they were constructed and as they now are on the premises so constructed; that the first material furnished was hauled upon the premises by an employee of respondents Bickel with a team and wagon belonging to them, and with their consent and approval.

As conclusions of law the trial court found appellant was entitled to judgment against the Idaho Game Breeders Association for the amount found due, with attorney fees and costs, to be a lien upon all the right, title and interest of said association in and to the real property described in the findings and the structures constructed and material furnished by plaintiff on said real property, and that no judgment be entered against either of respondents Bickel.

Decree was entered decreeing a sale of the structures erected by respondent association for the payment of appellant's claim against the association, and that appellant have execution against said association for any deficiency, and that appellant have no lien against any of the real property described and found to be owned by respondents Bickel. The real property involved is referred to as the Bickel ranch and consists of about 360 acres of...