Davis v. John Mouat Lumber Co.

• Decision Date: 26 September 1892
• Citation: 2 Colo.App. 381,31 P. 187
• Parties: DAVIS v. JOHN MOUAT LUMBER CO.
• Court: Colorado Court of Appeals

31 P. 187

2 Colo.App. 381

DAVIS v. JOHN MOUAT LUMBER CO.

Court of Appeals of Colorado

September 26, 1892

Appeal from district court, Arapahoe county; ALVIN MARSH, Judge.

Action by the John Mouat Lumber Company against Henry W. Davis as owner, and L.E. Forbes as contractor, and others as lienors to establish and foreclose a mechanic's lien. From a judgment for plaintiff, defendant Davis appeals. Reversed.

The other facts fully appear in the following statement by BISSELL, J.:

On the 1st day of June, 1890, Henry W. Davis, the owner of some property in Waddell and Machen's subdivision, made a contract with one L.E. Forbes to build a house on his land. Beyond the general provisions relating to the details of the structure, the contract provided that Forbes should take in payment two lots, at a specified valuation, and subject to certain incumbrances, and that the balance of the contract price ($1,500) should be paid in cash; $800 was to be paid when the house was under roof, and the balance when the house was completed. The contractor went to work to carry out the contract, and during the progress of the work bought some materials of the John Mouat Lumber Company, one of the parties to the suit. The contractor seems to have had considerable dealings with the lumber company and to have bought quite a quantity of materials which he was using in the carrying out of his various undertakings. In the suit which the lumber company brought against Davis as the owner, Forbes as the contractor, and divers other persons as lienors, they claimed that Forbes had bought of them materials of the reasonable value of $408.65, which went into the construction of the house. Within the time limited by the statute during which a lien might be filed by subcontractor the company filed its claim in the proper office, and in the form necessary to the protection of their rights. The only matter of importance in dispute concerning the lienor's rights which grows out of the facts, necessary to entitle the company to file the claim, springs from the evidence offered to show that the materials went into the building. It is claimed that the company failed to prove that the materials went into the building. The delivery on the ground was not satisfactorily established, nor was it clearly shown by witnesses who had knowledge of the affair that the stuff sold went into the building. The suit was commenced by the service of a summons on the owner and the other lienors, and the plaintiff attempted to secure service on the principal contractor, Forbes, by a substituted service under the statute. The case seems to show that Forbes had left the country, and the lumber company was unable to get service on him, and in order to prosecute the suit, as against him obtained an order to publish the summons. This order was based on an affidavit made by William E. White, and substantially set forth that he was one of the attorneys for the plaintiff in the action, and that Forbes had departed from the state sine animo revertendi, and that his post office address was not known to the affiant. The affidavit discloses no interest on the part of White in the suit other than that springing from his relation to it as an attorney. The order was obtained, publication had, and on the trial personal judgment was rendered against Forbes for the sum claimed to be due. The right to obtain the judgment on this service, and the necessity of a judgment against Forbes to entitle the lienor to enforce his claim, are questions abundantly saved by the record.

The statute to which the company must resort to ascertain its rights, and from which must be derived the means and process of enforcement, was passed in March, 1883. It has been amended, but the only provisions to which reference will be made for the purposes of this decision are: "Sec. 25. The court may proceed to hear and determine said liens and claims, or may refer the same to a referee to ascertain and report upon said liens and claims, and the amounts justly due thereon. Judgment shall be rendered according to the rights of the parties. The various rights of all the lien claimants and other parties in any such action shall be determined and incorporated in one judgment or decree. Each party who shall establish his claim under this act shall have a judgment against the party personally liable to him for the full amount of his claim so established, and shall have a lien established and determined in said decree upon the property to which his lien shall have attached, to the extent hereinbefore stated." This section, it will be observed, relates to the proceedings prior to judgment, and the parties who must be before the court when the decree is rendered. The other two sections which bear upon the questions before the court are, first, section 1, as amended in Sess.Laws 1889, p. 247, which is as follows: "Section 1. Whoever shall do any work or furnish any material by contract, express or implied, with the owner of any land, his agent or trustee, for the construction, enlargement, etc., of any building upon such land," etc. The balance of the section need not be stated. The other section, as amended by the last-named act, is section 15 of the original statute, and 7 of the amendatory act, and is as follows: "In case such lien is claimed by a subcontractor, or assignee of a subcontractor, it shall attach and extend to the full amount due the contractor, as provided by the original contract, and by any subsequent contracts relating to the same structure or improvement; and any payments made by the owner to the contractor, either before or after making such contract, or during the erection of such building or the making of such improvements, and during the time provided to subcontractors in which to file their liens, shall be at the risk of the owner; and no such payment shall be set off against the claim of any subcontractor, or assignee of a subcontractor, who shall file his statement for lien, and serve a copy thereof, as herein provided." The only other provision of the statute bearing upon the subject-matter of this section 7 is the ensuing one, which generally provides that the owner shall only be responsible to the extent of his contract price for the work.

It is substantially provided by section 4 of the amendatory act that the lien claim may be filed any time after the work is done, regardless of the limit of 60 and 40 days, generally expressed in the statute as the period during which liens must be filed by the contractor or subcontractor respectively, providing the rights of purchasers and incumbrancers in good faith remain unaffected, and, in the case of subcontractors, providing, further, that the principal contractor may not have been settled with by the owner. The act of 1883 contained a section giving to the subcontractor the right to protect himself, as to materials to be furnished or work to be done upon a contract, by serving a notice of his intention, which by its terms should substantially notify the owner of what his probable future claim might be. This provision, however, was swept away by the amendatory act of 1889, and there is no provision made in the statute for a notice to the owner of the making of the contract by a subcontractor, or his intention in the...