Cole v. Hunt

• Decision Date: 10 November 1949
• Docket Number: 8919.
• Citation: 211 P.2d 417,123 Mont. 256
• Parties: COLE et al. v. HUNT et al.
• Court: Montana Supreme Court

211 P.2d 417

123 Mont. 256

COLE et al. v. HUNT et al.

No. 8919.

Supreme Court of Montana

November 10, 1949

Action by Riley Cole and Mike Churmage, copartners, doing business as Cole & Churmage, against Harry M. Hunt and Archie Corrigeux on an account for labor and materials supplied in the construction of a building and to establish and foreclose a mechanics' lien.

The Eleventh Judicial District Court for Flathead County, Dean King, J., sustained defendant Corrigeux' demurrer to plaintiff's complaint and dismissed him from the action and plaintiffs appealed.

The Supreme Court, Adair, C.J., reversed the judgment sustaining the demurrer and dismissing the defendant Corrigeux from the action on the grounds that plaintiff's lien appeared on its face to be valid.

Harold F. Smith, Kalispell, for appellant.

James A. Cumming, Columbia Falls, for respondent.

ADAIR Chief Justice.

This is an action to recover $326.54 on an account for labor and materials supplied in the construction of a building together with interest, costs and attorneys' fees, and to establish and foreclose a mechanics's lien.

The complaint filed April 22, 1949, alleges: That about September 15, 1947, plaintiffs entered into an agreement with the defendant Hunt whereby plaintiffs were to furnish and deliver to Hunt, then the owner of lot 4, in block 24 of the original townsite of Columbia Falls, Montana, certain labor and materials in the construction of a certain building thereon that Hunt agreed to pay therefor the reasonable value thereof; that plaintiffs furnished the labor and materials in the construction of such building, completing the work about March 15, 1948; that the reasonable value of the labor and materials to supplied was $326.54 which Hunt agreed to pay that although demands were made upon him therefor he has wholly failed to pay; that on April 16, 1948, plaintiffs filed for record their verified claim of lien against the above described property and that thereafter the defendant Hunt conveyed such property to the defendant Archie Corrigeux.

Attached to the complaint and made a part thereof is a copy of plaintiff's verified claim of lien which states: That during the period commencing on or about September 15, 1947 and ending on the 14th day of March 1948, the plaintiffs, at the special instance and request of the defendant Hunt and upon his promise to pay therefor, furnished and delivered to the defendant Hunt of Kalispell, Montana, labor and material in the construction of that certain building located in the town of Columbia Falls, Montana, on the below particularly described lot therein; that such labor and material was actually used in and upon the construction of said building; that the reasonable and agreed value of said labor, supplies and material amounted to the sum of $326.54, which amount the defendant Hunt promised and agreed to pay; that plaintiffs' statement of account in the amount of $326.54 for the construction of said building for defendant Harry Hunt 'is a just and true account of the labor and services furnished upon this contract and the amount due Cole and Churmage after allowing all credits thereon;' that the entire amount agreed upon remains unpaid, although the same has been duly demanded; that, desiring to avail themselves of the benefit of the lien laws of this state, plaintiffs intended to file their said statement of account with the county clerk of Flathead county within the time provided by law to secure the amount due upon said account and that the correct description of the property sought to be charged with plaintiffs' lien is: 'Lot Four (4), Block Twenty-four (24) of the Original Townsite of Columbia Falls, Montana.'

The defendant Hunt on April 28, 1949, was personally served with summons and a copy of the complaint but made no appearance in the case and is in default.

The defendant Corrigeux filed a demurrer urging that the complaint fails to state facts sufficient to constitute a cause of action against him and asserting that plaintiffs' claim of lien 'does not contain an itemized statement of the materials or labor furnished by the plaintiffs to the defendant Harry M. Hunt, and that said lien is therefore void for failing to contain a just and true account of the amount due to the plaintiffs.'

The trial court sustained the demurrer and ordered the demurring defendant Corrigeux dismissed from the action. From the judgment of dismissal entered plaintiffs have appealed.

Every person wishing to avail himself of the benefits of the mechanics' lien law of this state must, within the time specified in the statute, perfect his lien by filing with the county clerk of the county in which the property is situate a paper which contains 'a just and true account of the amount due him, after allowing all credits, and containing a correct description of the property to be charged with such lien, verified by affidavit * * * which paper containing the account, description, and affidavit is deemed the lien. * * *' Section 8340, R.C.M.1935. Emphasis supplied.

The statute prescribes that the paper constituting the lien contain:

1. A 'just and true account of the amount due' the claimant 'after allowing all credits.'

2. A 'correct description of the property to be charged with such lien' sufficient for the identification thereof.

3. A proper affidavit which goes to both the account and the description.

Section 8341, R.C.M.1935, provides: 'The county clerk must indorse upon every lien the day of its filing, and make an abstract thereof in a book by him to be kept for that purpose, and properly indexed, containing the date of the filing, the name of the person holding the...