Bryan v. Orient Lumber & Coal Co.

• Decision Date: 08 February 1916
• Docket Number: 6758.
• Parties: BRYAN ET AL. v. ORIENT LUMBER & COAL CO.
• Court: Oklahoma Supreme Court

156 P. 897

55 Okla. 370, 1916 OK 166

BRYAN ET AL. v. ORIENT LUMBER & COAL CO.

No. 6758.

Supreme Court of Oklahoma

February 8, 1916

Petition for Rehearing Withdrawn April 25, 1916.

Syllabus by the Court.

While the law, providing for a materialman's lien, should be liberally construed to effectuate the object of the law, it is a condition precedent to the establishment of such lien that the proper lien statement be filed with the clerk of the proper district court, within the time provided by section 3863, Rev. Laws 1910, if the party seeking the lien be an original contractor, and within the time provided by section 3864, Rev. Laws 1910, if the party seeking the lien be a subcontractor; and such subcontractor must also give notice of the filing of such lien statement to the owner.

From the fact that the relation of husband and wife exists, it cannot be presumed that the husband is the agent of the wife and authorized, by reason of such marital relation, to contract for building upon the wife's land, so as to create a lien on her land.

A subcontractor, entitled to a mechanic's lien upon the land of the owner, is not legally entitled to a personal judgment against said owner on account of said lien.

In order to successfully maintain the defense of discharge in bankruptcy from the claim sued upon, the fact of such discharge in bankruptcy must be pleaded and proved.

Commissioners' Opinion, Division No. 1. Error from Superior Court, Custer County; J. W. Lawter, Judge.

Action by the Orient Lumber & Coal Company against Annie Bryan and another. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

Snodgrass & Darnell and Darnell & Darnell, all of Arapaho, for plaintiffs in error.

Henry Bulow, of Clinton, for defendant in error.

COLLIER C.

In this action, defendant in error seeks to recover of plaintiffs in error on account of an alleged materialman's lien. Hereinafter the plaintiff will be styled as it was in the trial court, and Annie Bryan and W. P. Bryan, defendants in the trial court. will be respectively styled wife and husband.

The evidence, so far as necessary to recite for a proper review of this case, is, substantially, that plaintiffs in error are husband and wife; that the wife owned the land upon which the materialman's lien is sought to be impressed; that the husband contracted with a contractor to build a dwelling upon said land; that said contractor purchased from plaintiff the material with which said dwelling was erected; that the last of said material was furnished by plaintiff on the 18th day of June, 1910; that after the completion of said dwelling the said husband was indebted to said contractor, and said contractor was indebted to plaintiff for a balance on account of said material furnished; and the said husband, on August 1, 1910, executed to plaintiff the promissory note sued on in this action; and said contractor was released by plaintiff of all liability on account of said material furnished by plaintiff; that on the 22d day of September, 1910, plaintiff filed in the office of the clerk of the district court of Custer county a materialman's lien, which was in form and substance as required by law; that said note was due and unpaid, except as to $28, which had been paid upon said note by said husband. There is no evidence in the case that said husband acted as the agent of his wife in the execution of said contract for the erection of said building, or that he had any authority to in any manner bind his wife in regard to said contract for building, or that said wife in any manner had knowledge of, or was connected with, the execution of said promissory note by the husband to plaintiff, or that notice of the filing of the lien was served upon the wife. By agreement, the case was tried to the court, and the court among others, made the following findings of fact:

"(1) The court finds that this is an action on a promissory note to recover $162.45, with interest at 10 per cent. from date of instrument; that the note was executed by W. P. Bryan on August 1, 1910; that on September 8, 1910, defendant W. P. Bryan paid $28, the same being indorsed as a payment on the note. (2) That this note was executed and delivered to plaintiff as a balance payment on a lumber bill, and that said lumber was used in the erection of a building on lots 11 and 12, block 4, Hays addition, Clinton, Okl., that the title to the lots on which this house was erected was in the name of Annie Bryan at the time of erection, said Annie Bryan being the wife of W. P. Bryan, and that they jointly occupied the property as husband and wife. (3) The court further finds that previous to the purchase of the bill of lumber, one Braffett was the treasurer of the Orient Lumber & Coal Company, a corporation, and the plaintiff in this action; that when the lumber and material left the lumber yard, it was charged to Bryan, 'by Braffett,' All payments were made to Braffett, except the $28, credited upon the note. (4) The court also finds that at the time the note was executed, Bryan and Braffett personally went to the place of business of the plaintiff and talked the matter over with H. P. Grow, president of the corporation, and who

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