Brubaker v. Bennett
| Decision Date | 29 April 1899 |
| Court | Utah Supreme Court |
| Parties | C. E. BRUBAKER, RESPONDENT AND CROSS-APPELLANT, v. J. H. BENNETT AND CINNIE BENNETT, APPELLANTS AND CROSS-RESPONDENTS |
Appeal from the Third District Court, Salt Lake County, Hon. Ogden Hiles, Judge.
Action to foreclose a sub-contractor's mechanics' lien.
On the trial the admission of the notice of lien in evidence was objected to by the defense on the ground that it was not in conformity with the provisions of Sec. 1386, R. S. 1898. The objection was overruled and exception taken.
From a judgment for plaintiff, defendant appeals.
At the trial plaintiff asked the court to allow an attorney's fee taxed as costs in pursuance of Sec. 1400, R. S. 1898. Objection was made that the section referred to was unconstitutional. The objection was sustained, and the court refused the request of the plaintiff. From such refusal plaintiff takes a cross-appeal. The action of the lower court is affirmed.
Affirmed.
Messrs Pierce, Critchlow & Barrette, for appellants and cross-respondents.
The lien does not state the price, terms, or conditions of the contract between the owner and the original contractor. It is therefore fatally defective. The only reference whatever in it to the original contract is contained in the following clause:
This language is almost identical to the language construed by this court in the case of Morrison, Merrill & Co. v Willard, 53 P. 833.
The language which the court there construed is as follows:
"Said described premises being the property of B. J. Clayton, who contracted with H. M. Willard and R. Stewart, doing business as Willard & Stewart, to erect said Clayton a residence on above-described premises."
In construing this language the court holds that it is insufficient, and does not satisfy the demands of the statute.
We fail to see any difference between this case and the one at bar. That case was based upon the following authorities: Gates v. Brown, 25 P. 914; Boisot on Mechanics' Liens Sec. 402.
We therefore submit that the judgment of the lower court should be reversed.
ON THE CROSS-APPEAL.
Our point, briefly stated, is this: If the section of our statute which allows attorney's fees had given a fee to the winning party, plaintiff or defendant, then the law would not be subject to the objections raised, because equal protection would be granted to both plaintiff and defendant, but when the statute says that the plaintiff shall have an attorney's fee if he wins, but does not give the same to defendant if he wins, there is no equality in the law. Such a law violates the spirit of the amendment to the Constitution of the United States, and deprives the losing party of the constitutional right which that instrument guarantees to him.
We think that the Supreme Court of the United States has effectively settled the question, in the case of Gulf Ry. v. Ellis, 165 U.S. 150; Coal Co. v. Rosser, 53 Ohio St. 12; 53 Am. St. Rep. 626; Grand Rapids Chair Co. v. Runnels, 43 N.W. 1006; 77 Mich. 104; Wilder v. Chicago Ry., 70 Mich. 384.
W. R. Hutchinson, Esq., for respondent.
This statute sets forth clearly and distinctly the averments which every claim of lien must contain. They are as follows: The claim must be in writing containing a notice of intention to hold and claim a lien, and a statement of his demand after deducting all just credits and set-offs, with the name of the owner, if known, and also the name of the person and by whom he was employed, or to whom he furnished the materials, with a statement of the terms, time given, and conditions of his contract, specifying the time when the first and last labor was performed, or the first and last materials furnished, and also a description of the property to be charged with the lien, sufficient for identification, which claim must be verified by the oath of himself or some other person.
Counsel for appellant does not claim that this lien is defective in that it is not drawn in compliance with the statute. If from a comparison you find that each provision of the statute is fully complied with, then the lien is sufficient in law, and does constitute a claim against the defendants.
Counsel for appellant makes the further claim that it does not state the price, terms, or conditions of the contract between the owner and the original contractor.
This position could not be tenable, as the statute does not require it. The Mechanics' Lien Law is purely a creature of statute, and when complied with no objection will lie.
The statute also requires that the notice shall contain a statement of the terms, time given, and conditions of his contract.
The court holds that this requirement of the statute was not substantially complied with in the above case, except inferentially.
Counsel has quoted from the last portion of the court's opinion under the above provisions of the statute, and cited Boisot on Mechanics' Liens, Sec. 402. I call the attention of the court to the distinction between the language contained in Sec. 402 of Boisot on Mechanics' Liens, and the language of our statute. Sec. 402 of Boisot on Mechanics' Liens is as follows: "Under a statute which requires the claim to contain a statement of the terms and conditions of the contract, if any, a claim filed by a sub-contractor should set out the terms of the original contract as well as those of the sub-contractor."
The language of the statute of this State is as follows:
"With a statement of the terms, time given, and conditions of his contract."
The distinction between the two being that the statute directs that the person making the claim of the lien shall set out the conditions of his contract, while in the authorities cited, the language directs that the claimant shall set out the terms and conditions of the contract.
In the case at bar under the Utah statute, the words, "his contract," limits it to the person filing the lien, whether he be the original contractor or sub-contractor, and in this case the Utah statute directs that he shall set out the terms and conditions of his contract with the principal contractor, and not the contracts between the owner and the original contractor.
ON CROSS-APPEAL.
In many of the States attorney's fees are taxed as costs either under the general code provision, allowing attorney's fees, or under special acts allowing them in mechanics' liens. See Boisot on Mechanics' Liens, Par. 674.
In support of the above reference I cite the following cases: Rapp v. Gold Co., 16 P. 325; 74 Cal. 532; Wortkan v. Kleinschmidt, 30 P. 280; 12 Mont. 316; 43 P. 78; Alice v. Distilling Co., 29 N.W. 543; 67 Wis. 16.
Statutes containing provisions of like character to the Utah statute have been pronounced constitutional by the courts of Kansas, Illinois, Missouri, Iowa, and Montana, and in these opinions the objections made in the case at bar are deemed groundless; Sec. R. R. Co. v. Mower, 16 Kan. 573; R. R. Co. v. Duggins, 199 Ill.; 537; Perkins v. R. S. Co., 10 Mo. 25; 15 S.W. 320; R. R. Co. v. Day, 48 N.W. 98, 12 Mont. 316.
This is a suit to foreclose a sub-contractor's mechanics' lien. A demurrer...
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Thompson v. Wise Boy Min. & Mill. Co.
... ... 150, 17 S.Ct. 255, 41 L.Ed. 666; ... Davidson v. Jennings, 27 Colo. 187, 83 Am. St. Rep ... 49, 60 P. 354, 48 L. R. A. 340; Brubaker v. Bennett, ... 19 Utah 401, 57 P. 170 ... We do ... not think the first case cited by appellant from the United ... States supreme ... ...
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Openshaw v. Halfin
...Pierce, Critchlow & Barrette for respondent. We are unable to see any distinction between the case at bar and the case of Brubaker v. Bennett, 19 Utah 401, decided by this court. We rely absolutely upon that authority. Furthermore the plaintiff was not entitled to recover attorney's fees ei......