Boise-Payette Lumber Co. v. Felt

• Decision Date: 02 June 1927
• Docket Number: 4556
• Citation: 44 Idaho 377,258 P. 169
• Parties: BOISE-PAYETTE LUMBER COMPANY, a Corporation, Respondent, v. EARL FELT, MARGARET GEORGIA RICE, Executrix of the Estate of W. P. RICE, Deceased, MRS.W. P. RICE, C. M. SMITH and MRS.C. M. SMITH, His Wife, Appellants
• Court: Idaho Supreme Court

258 P. 169

44 Idaho 377

BOISE-PAYETTE LUMBER COMPANY, a Corporation, Respondent, v. EARL FELT, MARGARET GEORGIA RICE, Executrix of the Estate of W. P. RICE, Deceased, MRS.W. P. RICE, C. M. SMITH and MRS.C. M. SMITH, His Wife, Appellants

No. 4556

Supreme Court of Idaho

June 2, 1927

MECHANICS' LIENS-REPAIRS ON BUILDING-SEPARATE CONTRACTS-NO BLANKET LIEN.

Where persons each of whom separately owned one of the three sections of a building each separately contracted with contractor for repair of roof of his part, the materialman with whom the contractor contracted for material for the whole building for a lump sum could not have a blanket lien for the entire amount, the agency of the contractor, under C S., sec. 7339, being limited and only authorizing the purchase of and creating a lien for materials reasonably necessary for the buildings, building or part of building embraced in single contract between him and the owner or owners.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Action to foreclose materialman's lien. Judgment for plaintiff. Reversed as to appellants C. M. Smith, Mrs. C. M. Smith, Mrs W. P. Rice and Margaret G. Rice, executrix; affirmed as modified as to Earl Felt.

Judgment reversed in part and affirmed in part. Costs to appellants. Petition for rehearing denied.

S. T. Hamilton and Porter & Witham, for Appellants.

Where separate contracts are made with the original contractor by the respective owners of buildings, on contiguous lots for the repair of the said buildings, a materialman's lien by a subcontractor cannot be sustained when filed as a blanket lien on all of said buildings, although the contract between the original contractor and subcontractor was an entirety. ( Beach v. Stamper, 44 Ore. 4, 102 Am. St. 597, 74 P. 208; C. S., sec. 7347; Exchange National Bank of Tulsa v. Okeya Oil & Gas Co., 107 Okla. 62, 229 P. 765; Smith v. Wilcox, 44 Ore. 323, 74 P. 708, 75 P. 711; Crane Co. v. Erie Heating Co., 57 Ore. 410, 112 P. 430; Sheldon v. Chicago Bonding & Surety Co., 190 Iowa 945, 181 N.W. 282.)

Where a portion of the indebtedness set out in a materialman's lien is not proper and the same is so intermingled with the remainder of the lien that it cannot be separated therefrom by an examination of the lien, then the entire lien is invalid. (Boise-Payette Lbr. Co. v. McCornick, 36 Idaho 788, 213 P. 1119; Valley Lumber Co. v. Nickerson, 13 Idaho 682, 93 P. 24; Christman v. Salway, 103 Ore. 666, 205 P. 541; McCormack v. Bertschinger, 115 Ore. 250, 237 P. 363.)

A decree providing for a foreclosure of a materialman's lien and a deficiency judgment is erroneous where the materials were furnished by a subcontractor under an agreement with the original contractor, as the property only is liable under such circumstances. (Valley Lumber Co. v. Nickerson, supra; C. S., sec. 7339; McCormack v. Bertschinger, supra.)

Where a materialman's lien fails to definitely and correctly state, if known, the names of the owners, it is invalid. ( White v. Mullins, 3 Idaho 434, 31 P. 801; C. S., sec. 7346; Robertson v. Moore, 10 Idaho 115, 77 P. 218; 27 Cyc. 164-168.)

Bothwell & Chapman, for Respondent.

The respondent is entitled to a lien upon the entire building although this includes the property of several owners. (C. S., secs. 7339, 7344; 40 C. J. 279; 18 R. C. L. 950; Sheldon v. Chicago Bonding & Surety Co., 190 Iowa 945, 181 N.W. 282; Christian v. Illinois Malleable Iron Co., 92 Ill.App. 320; Miller v. Schmitt, 67 N.Y.S. 1077; Miller v. Shepard, 50 Minn. 268, 52 N.W. 894; Carter Lumber Co. v. Simpson, 83 Tex. 370, 18 S.W. 812; Blackwell v. Kercheval, 27 Idaho 537, 149 P. 1060; Bevercombe v. Denny & Co., 40 Idaho 34, 231 P. 427; Heath v. Potlatch Lumber Co., 18 Idaho 42, 108 P. 343, 27 L. R. A., N. S., 707; Hammitt v. Virginia Min. Co., 32 Idaho 245, 181 P. 336; Davenport v. Burke, 30 Idaho 599, 167 P. 481; Phillips v. Salmon River Min. etc. Co., 9 Idaho 149, 72 P. 886; Armitage v. Bernheim, 32 Idaho 594, 187 P. 938; Abernathy v. Peterson, 38 Idaho 727, 225 P. 132.)

The evidence sufficiently shows that the material included in the claim of lien was used in the building. (Sabin v. Burke, 4 Idaho 28, 37 P. 352; Heylman v. Idaho Cont. Min. Co., 43 Idaho 129, 250 P. 1081; Rice v. Hodge, 26 Kan. 164.)

"The rule that where, under an entire contract with the owners in severalty of contiguous lots, a single building is erected, a single mechanic's lien may be filed against the building, and the several lots, has the support of a number of authorities." (18 R. C. L. 950.)

"Where several buildings are constructed under one roof, and the materials for building them are furnished under one contract, it is unnecessary to apportion the lien among different subdivisions of the ground on which the buildings are erected." (Christian v. Illinois Malleable Iron Co., 92 Ill.App. 320.)

"All of the provisions of our mechanic's and laborer's lien law, as well as all other statutes, must be liberally construed, with a view to effect their objects and to promote justice." (Phillips v. Salmon River. Min. etc. Co., 9 Idaho 149, 72 P. 886.)

"Lien statutes are remedial in character, and should be liberally construed in the interest of the laborer." (Abernathy v. Peterson, supra.)

MCNAUGHTON, Commissioner. Varian, Brinck, CC., Wm. E. Lee, C. J., Givens, Taylor and T. Bailey Lee, JJ., Concurring.

OPINION

MCNAUGHTON, Commissioner.--

Plaintiff had judgment in the trial court against defendants in the principal sum of $ 2,377.40 with interest amounting to $ 426.24, and attorney's fees in the sum of $ 300, and $ 1.50 fees for recording lien, amounting in all to $ 3,105.54, and by the judgment this amount was decreed a lien upon Lots 24, 25, 26 and 27 of Block 86, Twin Falls, Idaho.

Lots 24 and 25 were the community property of W. P. Rice and Mrs. W. P. Rice. Lot 26 was the property of C. M. Smith. Lot 27 was the property of appellant Mrs. C. M. Smith, wife of appellant, C. M. Smith. Appellant, Margaret Georgia Rice, executrix, has been substituted for W. P. Rice, deceased. Appellant, Earl Felt, is a building contractor, and contracted with the owners for the construction of the improvements involved, and purchased the materials on account of which this suit was brought.

In this case we find no conflict in the evidence. It is, as we view it, entirely a question of law growing out of business relations among the parties to the action.

In 1912, a two-story brick building was erected by C. M. Smith and W. P. Rice on the center lots, 25 and 26. The ground floor was occupied by business firms, and the second floor consisted of a hall, known as Cotillion Hall. There were offices in the front part of the building and a common entrance, in about the center of the building, lead to the second floor.

In 1913 Mrs. Smith improved her lot, 27, by constructing a two-story building upon it. The ground floor was occupied by the United Stores Company. The second floor was occupied with offices. The central entrance and hallway in the Cotillion Building were used by her tenants.

In 1914 a two-story building was constructed by Mr. Rice on Lot 24. The second floor was apportioned and used very much the same as Mrs. Smith's.

In 1920 a fire destroyed the upper story of all these buildings. Plans were prepared by an architect for their replacement. The old plan of the second floor was somewhat altered by the new one. The change consisted principally in eliminating Cotillion Hall and occupying that space with offices. The reconstruction was by contract and bids therefor were asked by the architect. In this behalf, Mr. Felt, one of the appellants, and the contractor for the reconstruction, testified:

"I entered into, the way I understood it, three different contracts; the architect, in calling for bids, asked for three different bids; one was on one part of the building, another on another part of the building, and another bid was on a third part of the building, as I understood it, on account of the different ownerships; . . . . Approximately, the work on the Cotillion Hall building amounted to about $ 7000, and the work for Mr. Smith on the building to the right about $ 3000, approximately, and the work for Mr. Rice on the building to the left, approximately $ 4000."

After entering into these contracts Mr. Felt submitted an estimate of the materials needed for the whole work to the lumber company as one job, and the latter gave him a lump sum price which was agreed to. The contractor paid $ 3,055.55 on the material account, leaving an unpaid balance of $ 2,377.40. The lumber company claimed and filed notice of lien in a lump sum against all the owners, and against all the property as one building. This action is for the foreclosure of that lien claim.

In effect, by the second and fourth assignments, appellants specify as error the finding and holding by the court that the owners were bound by the contract made between the contractor and the lumber company; and failing to find that the improvements...