Colorado Iron Works v. Riekenberg

• Citation: 38 P. 651,4 Idaho 262
• Parties: COLORADO IRON WORKS v. RIEKENBERG
• Decision Date: 17 December 1894
• Court: United States State Supreme Court of Idaho

38 P. 651

4 Idaho 262

COLORADO IRON WORKS v. RIEKENBERG

Supreme Court of Idaho

December 17, 1894

MECHANIC'S LIEN-WHO AN ORIGINAL CONTRACTOR.-A materialman, who contracts directly with the owner, and has no privity of interest, or contract with the contractor for construction, is an original contractor under the statutes of Idaho, and as such is entitled to sixty days, provided by statute, within which to file his lien.

(Syllabus by the court.)

APPEAL from District Court, Owyhee County.

Reversed and remanded, with instructions. Costs to appellant.

L Vineyard and D. D. Williams, for Appellant.

This is an action brought for the purpose of foreclosing a lien on a certain quartz-mill and the land upon which the mill is situated in Owyhee county, Idaho under the provisions of an act to secure liens for mechanics, laborers, materialmen and other persons. The defendant seems to rely on decisions of the supreme court of California, where, under the peculiar provisions of the law of that state, the court holds that materialmen are not original contractors, particularly Sparks v. Butte County etc. Min. Co., 55 Cal. 389. The law of California recognizes a clear distinction between contractors and materialmen, but the law of Idaho makes no such distinction. The law says, "The lien of materialmen, other than original contractor or subcontractor," thus showing that an original contractor may be a materialman. The contract was entered into directly between the appellant and the party owning the property. Under this state of facts, we do not see what position the appellant would occupy, other than an original contractor. We think it clear that he was an original contractor within the meaning of the law, and entitled to four months from the accrual of the indebtedness in which to file his lien." (Matthews v. Waggenhauser Brewing Assn., 83 Tex 604, 19 S.W. 150; Phillips on Mechanics' Liens, sec. 40; Hearne v. R. R. Co., 53 Mo. 324; Wisconsin Planing Mill Co. v. Grams, 72 Wis. 275, 39 N.W. 531; Lane-Bodly Co. v. Jones, 79 Ala. 156; Gieger v Hussey, 63 Ala. 342; Welch v. Porter, 63 Ala. 225.)

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

The only question in this case is as to the sufficiency of the complaint. We contend on the part of the respondent that the complaint fails to state a cause of action for the following reasons: 1. Because the complaint shows that the lien was not filed within thirty days after the furnishing of the material and the completion of the contract; 2. Because the lien does not describe the land upon which the building or structure was erected for which the material was furnished; 3. Because the lien was not verified at the time it was filed; 4. Because the verification affixed to the lien is not in compliance with section 6 of the lien law of Idaho. Section 6 of the lien law of Idaho approved April 27, 1893, provides: "Every original contractor claiming the benefit of this chapter must, within sixty days, and every other person must, within thirty days, after the completion of any building, etc., file for record with the county recorder, etc., a claim containing a statement, etc." (Sparks v. Butte County etc. Min. Co., 55 Cal. 389; Schwartz v. Knight, 74 Cal. 432, 16 P. 235; Hinckley v. Field's Biscuit Co., 91 Cal. 136, 27 P. 594.) The lien in question describes the property as "that certain lot and parcel of land at or near that certain quartz mining claim known as the Last Chance, situated in Owyhee county, Idaho." This is no description and fails to comply with section 6 and the lien is void for uncertainty. (Tibbetts v. Moore, 23 Cal. 208; Curnow v. Blue Gravel Co., 68 Cal. 262, 9 P. 149; Tredinnich v. Mining Co., 72 Cal. 78, 13 P. 152; Penrose v. Calkins, 77 Cal. 396, 19 P. 641; 15 Am. & Eng. Ency. of Law, 159.) A lien cannot be filed against the building alone; it must include land, or, if a mining claim, the mining claim on which the structure or building stands. (Williams v. Mountaineer Gold Min. Co., 102 Cal. 134, 34 P. 702, 36 P. 388.) The verification is made by the agent of the plaintiff, yet the agent does not show that he has any knowledge of the facts contained in the claim of lien. This verification is insufficient. (Dorman v. Cozier, 14 Kan. 224.)

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

OPINION

HUSTON, C. J.

The plaintiff, a corporation, made a contract with defendant, who is the owner of a certain mining claim situate in Owyhee county, Idaho to furnish him certain machinery to be used in the construction of a quartz-mill upon or adjacent to said mining claim. By the terms of said contract the machinery was to be paid for upon delivery. The machinery was furnished according to contract, and was used in the construction of the said mill. The machinery was delivered and accepted on the twenty-first day of June, 1893. On the twenty-second day of July of same year plaintiff filed its notice of lien under the statutes, and in due time brought suit to foreclose the same. To the complaint filed by plaintiff in such foreclosure suit defendant filed a general demurrer, which was sustained by the court, and, plaintiff declining to amend its complaint, judgment was entered for defendant for costs. From such judgment this appeal is taken.

The only questions raised upon the hearing are: 1. Was plaintiff's notice of lien filed in time? 2. Does the notice of lien contain a sufficient description of the property sought to be encumbered thereby to answer the requirements of the statute? It is claimed by respondent that plaintiff, being a "materialman," is not nor cannot be considered an "original contractor," as that term is used in our statutes; and that, therefore, it was not entitled to the limit of sixty days provided by the statute for the filing of notice of lien by "original contractors"; and in support of this contention respondent cites several cases from California which would seem to support his position. There seems to be an irreconcilable conflict between the conclusions reached by the various courts which have been called upon to pass on this...