Cannon v. Williams

• Decision Date: 31 January 1890
• Citation: 23 P. 456,14 Colo. 21
• Parties: CANNON et al. v. WILLIAMS.
• Court: Colorado Supreme Court

23 P. 456

14 Colo. 21

CANNON et al. v. WILLIAMS.

Supreme Court of Colorado

Jan 31, 1890

Appeal from district court, Douglas county.

Suit was begun by one George C. Bates against James Cannon, Jr. William J. Dounce, Morgan D. Williams, and others, to establish his claim for services rendered as an attorney, and to secure a prior lien upon certain coal mines, as to which two of the defendants were considered owners, and the others lien claimants. Williams filed an answer and cross-complaint alleging the performance of labor upon the mining property the non-payment of compensation therefor, and a compliance with the mechanic's lien law then in force. He asked judgment for $1,923.39, and that the same be made a lien upon the premises in accordance with the statute. Cannon and Dounce filed an answer to the cross-complaint, and the issue thus made was tried by a referee, who reported findings of fact, conclusions of law, and a judgment denying that lien. Exceptions being taken to the conclusions of law and judgment, the court, upon the hearing, set them aside, and entered judgment against Cannon for $1,822.66; also a decree giving Williams a lien for $1,075 of the amount claimed as demanded in his cross-complaint. From that decree the present appeal is prosecuted.

HAYT J., dissenting.

T. D. W. Youley, for appellant.

William Dillon, for appellee.

HELM, C.J., ( after stating the facts as above.)

No exceptions were taken to the referee's findings of fact, hence these findings are to be accepted as true. The decision of this court turns, therefore, upon the law applicable to such facts. Differences of opinion exist among the decisions as to whether mechanic's lien statutes should receive a strict or a liberal construction. But since these statutes are manifestly equitable in purpose, and remedial in nature, and especially since the course of legislation on the subject in this state has been reasonably just to all parties concerned, we are inclined to favor the doctrine of liberal construction. Barnard v. McKenzie, 4 Colo. 251; De Witt v. Smith, 63 Mo. 263; Skyrme v. Mining Co., 8 Nev. 219. But to lay the foundation for this peculiar relief there must, of course, be a substantial compliance with all material requirements of the law. Phil. Mech. Liens, § 16, and cases; Railroad Co. v. Harris, 12 Colo. 226, 20 P. 764. The statute in force at the time of these proceedings (section 2140, Gen. St.) required the lien claimant to file a 'statement' or notice with the clerk and recorder of the county where the land was situate, containing, among other things, 'an abstract of indebtedness, showing the whole amount of debt, the whole amount of credit, and the balance due, or to become due, to the claimant.' In the case at bar the notice contains no such abstract. It wholly fails to state the account. It names neither the total amount of debt, nor the total amount of credit. It makes no attempt in any way to show the debits or credits. It merely states the balance claimed to be due. Moreover, more than one-third of this alleged balance represents an item for which no lien could be allowed under the statute. We shall assume that appellee, by including this item, was not guilty of bad faith either in fact or in law, and that his act constituted an innocent mistake, which would not, of itself, destroy the lien. Phil. Mech. Liens, § 355. Nevertheless it might deceive, and is a serious additional imperfection in the notice. We do not speculate concerning the purpose of the legislature in requiring that the notice contain this abstract. Whatever such purpose may have been, it is sufficient for us that the statute was thus written, and that its language is free from ambiguity. The doctrine of liberal construction is not broad enough to cover such defects as the one in question. There is not a substantial compliance with the statute. Stating a balance due can hardly be regarded even as an attempt to give the abstract of indebtedness required; and this is especially true where a large part of the alleged balance arises from an account for which no lien could be decreed. Id.§ 357, and cases cited.

Counsel for appellee seeks to avoid the effect of the omission in question by claiming that appellants could not have been deceived or misled thereby. When there has been a substantial compliance with the statute, mistakes that do not tend to deceive parties interested may be overlooked. But the consideration that there is in a given case an absence of resulting injury in fact cannot supersede or dispense with the material steps designated as a condition precedent to the lien. If it could, liens might be maintained in many cases without filing any 'statement' whatever; for it will sometimes happen that the parties interested are in possession otherwise of all facts to be stated in the notice, including the intention to claim a lien.

But the facts in the case at bar, as well as the law, do not support counsel's premises. During the period of appellee's service under his employment, which employment was by Cannon the property changed hands twice. The first of the three owners, the Denver Coal Company, was not made a party to the original suit, nor to the proceeding by cross-complaint. The second owner was appellant Cannon. The third owner, who held title at the time of trial, was appellant Dounce. Cannon does not appear to have been Dounce's agent in mining and marketing coal. The referee reports that after Dounce purchased Cannon continued to work 'the mine for his own benefit, with the knowledge of Dounce, though Dounce was not interested pecuniarily in such mining operations.' ...