Dexter, Horton & Co. v. Sparkman

• Citation: 25 P. 1070,2 Wash. 165
• Court: United States State Supreme Court of Washington
• Decision Date: 25 February 1891
• Parties: DEXTER, HORTON & CO., BANKERS, v. SPARKMAN ET AL.

25 P. 1070

2 Wash. 165

DEXTER, HORTON & CO., BANKERS, v. SPARKMAN ET AL.

Supreme Court of Washington

February 25, 1891

Appeal from superior court, Kitsap county.

McGilvra, Blaine & De Vries, for appellant.

I. A. Murchison, for appellees.

STILES J.

Five plaintiffs-J. M. Sparkman, D. A. McDonald, William Riechers William Kemery, and W. B. Morris-joined in an action to foreclose laborers' liens on certain lumber and shingles situated at the saw-mill of the Builders' Material Company, in Kitsap county. The Builders' Material Company was made a party to the action, and was served with process but it made no appearance. Dexter, Horton & Co., bankers, a corporation, appeared, and demurred to the complaint and each of the separate causes of action therein stated, on the ground that no cause of action was stated. Copies of the several liens were annexed to and made a part of the complaint. The action was brought under section 1947 of the Code. Each of the liens was in substantially the following form: "Notice is hereby given that _____ _____, of Kitsap county, Washington state, claims a lien upon all lumber, being about 100,000 ft., which was manufactured in Kitsap county, Washington state, and which is marked thus _____; and is now lying at the saw-mill owned by said Builders' Material Co. in Kitsap Co., the same being the place where said lumber was manufactured, and situated about two miles south of Port Blakely, on Puget sound, for labor performed upon and assistance rendered in manufacturing said lumber." Other clauses followed. We are of opinion that this description was sufficient, as against the objection of appellants that the place was not sufficiently located, that the lumber had no marks, and that it is not stated that the logs were manufactured into lumber. It is not usual, we think, to mark lumber; and, as the lien can only be taken upon lumber while still at the mill, it must be left to the proofs to show labor on the lumber upon which it is proposed to establish the lien. Of necessity liens of this class must be less definite than those upon real property, or no effect could be given to the statute. A mill which is "about two miles south of Port Blakely, on Puget sound," ought to be easily found. That one who manufactures lumber manufacturers it out of logs would seem to be so nearly a violent presumption that it would not be necessary to say it in more abundant language than that used.

The notice of William Kemery alleged his own claim of $32.50 with an offset of $20.80; and it also alleged that the Builders' Material Company was indebted to G. M. Kemery in the sum of $51.25, with an offset of $33.42, which indebtedness had been assigned to claimant. William Kemery claimed a lien for both balances in the gross sum of $29.63. This he could not do. The lien given by statute is personal to the laborer; it does not run with the chose in action. Having perfected his lien, and thus entitled himself to the equity, an assignment of the debt might entitle the holder to the enforcement of the security thus obtained. There has been much discussion and diversion of opinion among courts and writers on this subject of the assignment of claims and the right of assignees to perfect liens to secure them; but we think the rule announced is the better one under our present statute. Having confused the two demands, plaintiff failed to comply...