Craig v. Higgins

• Decision Date: 08 April 1924
• Docket Number: 1103
• Citation: 224 P. 668,31 Wyo. 166
• Parties: CRAIG v. HIGGINS
• Court: Wyoming Supreme Court

224 P. 668

31 Wyo. 166

CRAIG v. HIGGINS

No. 1103

Supreme Court of Wyoming

April 8, 1924

ERROR to District Court, Weston County; HARRY P. ILSLEY, Judge.

Action by Bert Higgins against A. K. Craig and others to foreclose a lien for the drilling of an oil well. There was a judgment for plaintiff and defendants bring error.

Case remanded and judgment granted.

Wakeman & Dolezal, Henry Frawley and W. E. Mullen, for plaintiffs in error.

The Statute, 4830 C. S. provides that a lien must be founded on contract with the owner or lessee, or one acting for him this is a vital requirement of the lien statement; the lien notice must follow the statute, Barteolet v. Parker, 43 Wis. 551; Malter v. Co. 2 P. 50; Mayes v Ruffner, 8 W.Va. 386; McElwee v. Sanford, 53 How. Pr. 90; the name of the owner must be set forth in the statement, Ruggs v. Hoover, 10 N.W. 473; the statement here does not give the name of the owner, nor state that it is unknown; there is no just or true account of the demand due, as required by statute, Becker v. Hopper (Wyo.) 138 P. 181, nor a description of the property Davis v. Lumber Co., 85 P. 980; a true account is required by the statute, Mitchell Co. v. Allison, 40 S.W. 120; Joyce v. Hoyt, 81 S.W. 468, the name of the owner must be stated, Wyman v. Quayle, (Wyo.) 68 P. 988. The Court erred in overruling the objection of plaintiffs in error to its admission, 4830 C. S., there was no contract; the evidence clearly shows that Craig never entered into a contract with Higgins, the Gardner contract was not followed; the verdict is not supported by the evidence; Martin v. Martin, 45 P. 813; the verdict is against law, Foreman v. Patterson, 24 P. 692; Pierce v. Schaden, 55 Cal. 406; Ireton v. Ireton, 63 P. 429; the verdict was merely advisory and should have been set aside; Gartner v. Nohan, 163 N.W. 674; there was no evidence to sustain an oral contract, Fuller v. Cretian, 117 N.W. 344; Waters v. Waters, 79 N.E. 1037; the verdict is in conflict with the evidence, Woodbury v. Doherty, 143 N.W. 216; Rakowski v. Zimmerman, 149 N.W. 215; Fox v. Nachstein, 29 P. 140; there is no evidence to prove any debt, Weaver v. Ry. Co., 45 N.E. 717.

Raymond & LaFleiche for defendant in error.

On the argument of the motion for a new trial all questions, except the sufficiency of the evidence to sustain the verdict were waived and cannot be considered now, St. Louis Ry. v. White Co., 93 S.W. 58; Eckes v. Stetler, 90 N.Y.S. 473; Emery v. Vinall, 26 Me. 295; Shoaff v. Funk, (Ill.) 54 N.E. 969; a verdict based upon conflicting evidence will not be disturbed on appeal, City v. Murphy, (Wyo.) 115 P. 436; Kimball v. Payne, (Wyo.) 64 P. 673; this is the universal rule; no motion was made for a directed verdict at the close of the evidence; there was evidence to support the verdict, it was apparently conceded that defendant in error had produced sufficient evidence to warrant the submission of the case to the jury. An examination of the record will show the verdict to be supported by evidence; the case comes within the rule against disturbing verdicts based upon conflicting evidence, Ferst v. Hall, 33 S.E. 951; A. T. & S. Ry. Co. v. Matthews, 49 P. 602; Inhab of Monroe v. Inhab of Hampdon, 49 A. 604; Rolide v. Biggs, 66 N.W. 331; Crystal L. Ice Co. v. McCauley, (Cal.) 17 P. 924; Nolen v. Heard, 13 S.E. 554; Jerauld v. Watkins, 27 N.E. 872; Stoutenburgh v. Don Gilman Hancock Co. 47 N.W. 1041; Johnson v. Leggett, 28 Kan. 590; Lee v. Huron Indemnity Union, (Mich.) 97 N.W. 709; Steere v. Page (R. I.) 67 A. 363; Chattanooga Elec. Ry. Co. v. Finney, 58 S.W. 540; Ins. Co. v. Bell, 60 S.W. 264; Anderson v. McDonald, 71 P. 1040; Wilcox v. Ry. Co., 81 F. 143; Gallup v. Peck, 24 Ill. 586; Collins v. City, 94 N.W. 309; Marshall v. Rugg, (Wyo.) 44 P. 700; plaintiff in error having tried the case upon the theory that defendant in error began drilling as a trespasser, now contends that defendant worked under a verbal contract, which was terminated after 100 feet had been drilled; this we submit cannot be done; the authorities cited by plaintiffs in error do not sustain their position, when the facts in all of them have been carefully examined, the Wisconsin case of Roakski v. Zimmerman merely recognized the discretion of a trial court to grant a new trial, though there was evidence to sustain the verdict. The jury believed that Higgins made an oral contract with plaintiff in error, Craig and worked under it; plaintiff in error did not realize upon the Gardner contract. The notice of lien is sufficient and complies with Chapter 128, Laws of 1919, compiled as Section 4830 to Sections 4839 Comp. Stats. The lien statement is also in compliance with the Statute.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

This is a proceeding in error to review a judgment in favor of the defendant in error (plaintiff below) in an action to recover for the drilling of two oil wells, and to foreclose a lien claimed under the provisions of Chapter 128 of the session laws of 1919, now sections 4830 to 4839, of the Compiled Statutes of 1920.

The only contention is that the verdict and judgment are not sustained by sufficient evidence.

It is argued that the notice of lien was invalid because it did not recite that the work was done under a contract "with the owner, part-owner or lessee" or "the authorized agent of the owner or part-owner or lessee" or "the trustee, agent or receiver of any such owner," as provided by section 4830. It may be conceded that that section gives the right to a lien to those only who have furnished material or done work under a contract with some one who had a right to contract with reference to the property benefited. But the facts necessary to the right to a lien must not be confounded with the facts required to be stated in the notice of lien. Hurlbert vs. New Ulm Basket Works, 47 Minn. 81, 49 N.W. 521. Section 4830 does not purport to prescribe what the notice of lien shall contain. That is done by section 4833, which provides that "said notice shall in substance set forth the fact that the party furnished such materials or supplies or performed such labor (naming the kind) for a party or company (naming the party or company); that such material or supplies or labor was furnished or performed under a contract (stating the substance); also, the time when the party commenced and ceased to furnish such materials or supplies or perform such work; the amount still due and unpaid, together with a description of the premises where such materials or supplies were delivered or upon which such labor was performed, * * *." We see no reason for a construction enlarging these requirements. It is not argued that the notice in the case at bar did not state all the facts required by section 4833. Unless the statute requires it, it is not necessary that the notice state that the contract was made with the owner or some one acting under his authority, however important that may be in the action to enforce the lien. Hurlbert vs. New Ulm Basket Works, supra; Moritz vs. Splitt, 55 Wis. 441; 13 N.W. 555; Hauptman vs. Catlin, 20 N.Y. 247; Davies-Henderson Lbr. Co. vs. Gottschalk, 81 Cal. 641; 22 P. 860; Post vs. Miles, 7 N.M. 317; 34 P. 586; Osborn vs. Logus, 28 Ore. 302; 37 P. 456, 38 P. 190, 42 P. 997; Red River Lbr. Co. vs. Friel, 7 N.D. 46; 73 N.W. 203; Sorg vs. Crandall, 233 Ill. 79, 84 N.E. 181.

The plaintiff claimed that he drilled the wells under an oral contract made about June 7, 1920 with defendant Craig, who was then the owner of the land on which the wells were drilled. The plaintiff's evidence tended to prove that by this contract he agreed to "drill a well, starting as large a hole as he could and carrying it as far as he could," and that Craig agreed to furnish casing and to pay for the drilling at the rate of $ 5 per foot. A few days after June 7, the plaintiff moved his drilling rig to the land, commenced drilling, and, by June 21, had drilled to a depth of 100 feet. Craig denied the making of the contract of June 7, and claimed that until June 21 he had no knowledge that plaintiff was drilling on the land in question. The plaintiff and Craig both testified that on June 21 or 22 Craig came to the well where he and plaintiff had a conversation in which Craig declared that plaintiff could not proceed with the work unless he agreed to drill under the terms and conditions of a written contract previously entered into between Craig and defendant, Gardner, for the drilling of two wells in the same locality, and that the plaintiff, who then had some knowledge of the terms of the Gardner contract, emphatically declared that he would not agree to drill in accordance therewith. The plaintiff testified that he then offered to abandon the work if Craig would pay him at the contract rate for the drilling already done, but this Craig refused to do. Craig then left the property and was not there again during the drilling operations, but was represented there by his agent, DeBow. After Craig had left, the plaintiff suspended drilling for a time, and DeBow testified that plaintiff then examined the Gardner contract, and consented to drill under its terms, but requested that Craig be asked to consent to a modification with respect to the time of the first payment for drilling, which under the Gardner contract was to be made when the well had been drilled to a depth of 500 feet. Plaintiff testified that he wrote Craig that he would go ahead under the terms of the Gardner contract if Craig would consent to a modification of this provision as to the time of the first payment. Craig, on receiving either from DeBow or plaintiff notice of this suggested modification, sent the following telegram dated June 22 to DeBow:

"It...