Culmer v. Clift

• Citation: 47 P. 85,14 Utah 286
• Decision Date: 09 November 1896
• Docket Number: 625
• Court: Supreme Court of Utah
• Parties: GEORGE F. CULMER, RESPONDENT, v. FRANCIS D. CLIFT ET AL., APPELLANTS

47 P. 85

14 Utah 286

GEORGE F. CULMER, RESPONDENT, v. FRANCIS D. CLIFT ET AL., APPELLANTS

No. 625

Supreme Court of Utah

November 9, 1896

Appeal from the Third district court, Territory of Utah. Hon. S. A Merritt, Judge.

Action by George F. Culmer against Francis D. Clift and others to foreclose four mechanics' liens, on three of which judgment of foreclosure was rendered, viz.: one in favor of G. F. Culmer & Brothers, one in favor of E. C. Coffin Hardware Co., and one in favor of Fred W. Gray.

Affirmed.

Brown Henderson & King, for appellants.

Sutherland & Murphy and Andrew Howat, for respondent.

No briefs were filed.

MINER J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

In 1890, defendant Clift entered into a contract with defendant Nink to furnish material and labor to rebuild the Gladstone building, in Salt Lake City, under plans prepared by Carrol & Kern, his architects, and under their supervision. As the work progressed, changes were made in the plans, and additional contracts entered into. G. F. Culmer & Bros., the E. C. Coffin Hardware Company, Fred W. Gray, as material men and sub-contractors, assigned their claims arising from mechanics' liens to the plaintiff, who brought suit to foreclose the same. F. D. Clift, the owner of the building, A. Nink, the principal contractor, Carrol & Kern, and A. Braun, sub-contractors, being all the parties in interest, were made defendants, and all made default except Clift, the appellant, who answered. All the parties were before the court as witnesses. The defendant Clift took possession of the building after its completion, in December, 1890. This suit was commenced to foreclose the liens, May 5, 1891. In September, 1891, Clift filed an answer, alleging that, before notice of any lien or claim, he had paid the contractor Nink $ 19,082.27, the full contract price, except $ 2,727, which sum he then held for the benefit of the contractors, sub-contractors, and material men, as they may prove their right thereto, which sum he was ready to pay over, as may be adjudged by the court. On May 19, 1894, defendant Clift filed his amended supplemental answer, claiming that the contract had not been completed as agreed, and that he had lost rents, and was damaged thereby in the sum of $ 5,370, which he desired to be offset as against the claims set up in the complaint, but did not waive or change any part of the original answer. The principal question in which the appellant was interested on the hearing in the court below was as to the amount of damages he was entitled to withhold as against Nink, the principal contractor. No personal decree was rendered against the defendant Clift, but findings were made, and judgment and sale of the property were ordered to satisfy these several mechanics' liens, which were assigned to the plaintiff, aggregating $ 2,108.25, including interest. From this judgment, defendant Clift appealed to this court, in July, 1895.

The appellant's first contention is that there is a variance between the complaint and the proof as to the claim of Culmer Bros. The allegation in the complaint is that Culmer Bros., at the request of Clift and his architects, Carrol & Kern, furnished material, etc. The lien filed and in proof states that the material furnished and labor performed were in pursuance of a contract made by Culmer Bros. with Braun, Carrol & Kern, and A. Nink, who were the principal contractors employed by defendant Clift to construct the building. Certain proof was offered which tended to connect the defendant with the several contracts upon which liens were filed.

Section 3252, Comp. Laws Utah 1888, provides that "no variance between the allegations in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits." Section 3253, Id., provides that, "where the variance is not material as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs." Section 14, p. 27, Laws 1890, provides that "any informality in any such statement that shall not tend to mislead, shall not affect the validity thereof. No incorrect estimate in any such statement of the amount due or to become due, or of any probable value, shall affect the validity of any such statement, unless such incorrect estimate be made in bad faith. * * *"

The court found the facts according to the evidence, and it does not appear that the defendant was misled by the variance to his prejudice. He admitted in his answer that the sum of $ 2,727 was still in his hands, belonging to the contractors, sub-contractors, and material men, which he was willing to pay as directed by the court. There was a variance, however, between the allegations in the complaint and the proof, but not in its general scope and meaning, as shown by the pleading and proofs. Under the circumstances shown in this case, we do not consider the variance pointed out by the appellant between the allegations and proof so material and important that it misled the defendant to his prejudice in maintaining his defense upon the merits. Holman v. Pleasant Grove City, 8 Utah 78, 30 P. 72.

It is also contended that the several assignments of mechanics' liens were made to the plaintiff for the purpose of bringing suit, and that such assignments were improperly admitted in evidence. Section 28, c. 30, p. 31, Sess. Laws 1890, expressly authorizes such assignments, and provides that the purpose of enforcement of any mechanics' liens by action under this act shall be a sufficient consideration as to all other parties for the purpose of such action. Such assignments have been held good, under section 3169, Comp. Laws 1888. Wines v. Railway Co., 9 Utah 228, 33 P. 1042; Pom. Rem. & Rem. Rights (2d Ed.) § 132; O'Connor v. Irvine, 74 Cal. 435, 16 P. 236.

The court found, upon conflicting evidence, that the damages set up by Clift in his amended answer did not amount to exceed the sum of $ 1,100, and allowed that sum as damages to Mr Clift, and fixed the amount of...