Colorado Iron Works v. Riekenberg

• Decision Date: 31 January 1896
• Citation: 4 Idaho 705,43 P. 681
• Parties: COLORADO IRON WORKS v. RIEKENBERG
• Court: Idaho Supreme Court

43 P. 681

4 Idaho 705

COLORADO IRON WORKS v. RIEKENBERG

Supreme Court of Idaho

January 31, 1896

MECHANIC'S LIEN-FINDINGS OF COURT.-Findings of court examined and held to warrant a judgment for plaintiff. When materials are sold under a general sale, without any reference to what use or when they are to be used, held, not sufficient to support a mechanic's lien therefor.

APPEAL from District Court, Owyhee County.

Judgment affirmed, with costs to appellant.

D. D Williams, for Appellant.

This action was commenced in the district court to foreclose a mechanic's lien on a certain quartz-mill and its appurtenances. Was the plaintiff called on, under the state of the pleadings, to offer proof that the property was sold by the plaintiff to be used in the mill, or was it admitted by failure to deny? The appellant claims as a matter of law that in order to put an allegation of complaint in issue the denial must be as complete as the allegation, and must be directed to every material thing in the allegation that he wishes to controvert, but here the pleader does not deny that the machinery was to be used in the mill, but simply denies that it was to be used on the mine, when he knew that the mill was not on the mine. The denial was not sufficient. (Van Santvoord's Pleadings, 426-430.) A specific denial must be certain and definite as to the fact denied. (Bliss on Code Pleading, sec. 331.) Each denial must be regarded as applying to the specific allegation which it is designed to controvert. (Pomeroy's Remedies, sec. 616.) The courts have frequently held, and I have found no decisions to the contrary, that the price agreed to be paid would be the value of the articles purchased or the services rendered, in the absence of evidence to the contrary. It has been often held that under a complaint seeking to recover what the thing was justly worth, evidence of an agreed price is admissible; and the agreement for price controls, if within the limit marked by the allegation of value and the demand for judgment. (Robinson v. Lewis, 7 Misc. 536, 27 N.Y.S. 989; Abbott's Trial Evidence, 306; Ludlow v. Dole, 1 Hun, 715; Fells v. Vestvali, 2 Keys, 152; Sussdorf v. Schmidt, 55 N.Y. 319; Kent v. Whitney, 9 Allen, 62, 85 Am. Dec. 739.)

George H. Stewart and W. E. Borah, for Respondent.

Counsel for appellant contend that it was relieved from proving the sale of the machinery for use in or upon the property sought to be subjected to the lien, for the reason that such allegation in the complaint was not denied. The right to a lien is purely statutory, and the statute prescribes the conditions. The machinery must not only have been used in the construction of the building, but it must have been, by the express terms of the contract, furnished for the particular building or premises upon which the lien is claimed. (Roebling Sons & Co. v. Bear Valley Irr. Co., 99 Cal. 488, 34 P. 80; Holmes v. Richet, 56 Cal. 307, 38 Am. Rep. 54; Eisenbeis v. Wakeman, 3 Wash. St. 534, 28 P. 923; Steel v. Argentine Min. Co., ante, p. 505, 42 P. 585; Kellogg v. Littell & Smythe Mfg. Co., 1 Wash. 407, 25 P. 461; Donaher v. Boston, 126 Mass. 309.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

The plaintiff is a corporation engaged in the manufacture of iron machinery, etc., at Denver, Colorado. The defendant was one of four persons holding a lease upon a certain mine located in Owyhee county, Idaho. On the 3d of April, 1893, defendant addressed the following letter to plaintiff:

"De Lamar, Idaho April 3d.

"To Colorado Iron Works, Denver, Colo.

"Gentlemen: Will please inform me if you can make the following articles, and at what price? 2 chlorinating barrels, of the following description and sketch: The barrel is of 1/8-inch sheet iron, 53-inch diameter, and 60 inches long, with 3-inch angle iron, riveted to ends for flanges to fasten the heads to. This hull is to be lined with redwood carefully, and leave 4 heavy pieces, 2 inches heavier than the rest, extend out in the barrels (as shown in sketch 1), to act as agitators. The heads is of 3-16 sheet iron, lined with 3-inch wood; the wood recessed, as shown in sketch, to fit the staves of the hull. This must be done carefully as leaks is disastrous to gold chlorinating. The joints can be made tight with rubber gasket, and bolted together. The charging hole in the barrel is 5 inches wide and 12 inches long, covered with a wooden cover, as shown in sketch; and this cover is held in place and tight by a band of 3/4 round iron around the barrel, and fastened as shown, in a block of iron 2x4x6, through which two holes are bored through them. The ends of the rods are run and tightened with nut and thread. The barrels will run horizontally, as shown in No. 3, and is carried by axles or shafts, which are keyed into flanges. The flanges are fastened to the heads with bolts. The heads of the bolts must be countersunk in the wood, so we can put sheet rubber or cement on them, as no iron should be exposed to the charge. The shafts or axles are 3 inches diameter, and the two barrels are connected together as shown in No. 3, and will run from 8 to 10 revolutions per minute. I therefore thought to use a cog gear 4 to 1, but this gear will have to be strong; a spur wheel, 36 inches diameter, 4-inch face, 2-inch pitch, with a pinion, 8 inch diameter. The pinion shaft is 2 1/2 inch diameter, and 4 feet long; pulley 30 inches diameter, with 3-inch crowned face. This shaft should have one collar with it, and 3 or 5 pillar blocks. Will you please inform me if you can make them, how soon, and at what price? We also want 4 wooden tanks; 2 of these is to be used as filter tanks, 7 feet diameter and 2 1/2 feet high; and 2 tanks, 3 feet diameter and 6 feet high; and at what price can you furnish us 3-16 sheet iron, 3 feet wide and 22 feet long? Of course, the riveting we do here, but the holes should be punched there, joints to be riveted every 8 inches--that is, rivets to be 8 inches apart; and a smokestack 13 inch diameter and 30 feet high, and one fire front for reverberatory furnace, with 20-inch by 20-inch fire door, and 18-inch ash door; the whole thing would not be over 4 to 6 inches high; and 6 or 8 grate bars, 4 feet long. Answer to the address of William Riekenberg, De Lamar, Owyhee County, Idaho."

To which letter plaintiff, under date of April 10, 1893, sent an answer, giving a list of various articles of machinery, with prices, and closing with the words: "We shall be pleased to enter your order for any or all of what you may require of the above list and prices"; letter signed by president of plaintiff corporation. On April 14, 1893, defendant sent to the plaintiff the following letter:

"De Lamar, Idaho April 14, 1893.

"Colorado Iron Works, Denver, Colo.

"Gentlemen Yours of the 10th at hand, and make and send me as soon as possible the two chlorinating barrels, as per specification 2 tanks, 8 feet diameter, 2 1/2 feet deep; 1 tank, 8 feet diameter, 6 feet deep; 1 3-16 sheet steel, 8 feet wide, 22 feet long; one of the lightest fire fronts as you have marked No....