Dybvig v. Willis

• Decision Date: 15 July 1938
• Docket Number: 6540
• Citation: 59 Idaho 160,82 P.2d 95
• Parties: GUS DYBVIG, Respondent, v. BERTHA L. WILLIS, Appellant
• Court: Idaho Supreme Court

82 P.2d 95

59 Idaho 160

GUS DYBVIG, Respondent, v. BERTHA L. WILLIS, Appellant

No. 6540

Supreme Court of Idaho

July 15, 1938

MECHANIC'S LIEN-RIGHT TO LIEN-LAND SUBJECT TO LIEN-MATERIAL FURNISHED-SERVICES PERFORMED-FINDINGS.

1. The provisions of the lien laws must be liberally construed with a view to effect their object and promote justice. (I. C. A secs. 44-501 to 44-516.)

2. The owner of a building which was reconstructed by a contractor could not deprive the contractor of the protection of the mechanic's lien statute by breaching the contract under which the labor was performed and the materials furnished, on theory that proceeding for lien for reasonable value of labor performed and materials furnished constituted abandonment of contract and that statute does not give contractor lien for such labor and services. (I. C. A., secs. 44-501 to 44-516.)

3. A judgment awarding a contractor a lien for construction of a residence was not required to be reversed because complaint alleged that contractor was employed to draw plans and specifications for repair and reconstruction of the residence for which the contractor was not entitled to a lien, where trial court found that reasonable value of labor and materials furnished by contractor amounted to lump sum and it was impossible to determine from record that trial court actually allowed contractor anything for drawing plans and specifications. (I. C. A., secs. 44-501 to 44-516.)

4. A contractor, for the reconstruction of a residence, was entitled to lien for services in planning and directing the work of repairing and reconstructing the building. (I. C. A sec. 44-501.)

5. In suit to foreclose mechanic's lien, failure of trial court to determine amount of land around structure required for the convenient use and occupation thereof, as required by statute, was error, requiring remanding of case to trial court with instructions to ascertain the amount of land required for the convenient use and occupation of the property and to make proper finding and modify judgment accordingly. (I. C. A., sec. 44-505.)

6. In suit to foreclose mechanic's lien, the amount of land required for the convenient use and occupation of the property against which foreclosure of lien is sought is not required to be pleaded in order to state cause of action in view of provision of statute imposing duty on court to make finding as to such fact. (I. C. A., sec 44-505.)

7. In suit to foreclose mechanic's lien, time book, kept by timekeeper who entered in the time book from day to day the number of hours of labor each man performed, was admissible for whatever it showed in relation to the number of hours of labor performed by such workers, as against contention that book was inadmissible on the ground that it did not show the contractor's time nor material furnished. (I. C. A secs. 44-501 to 44-516.)

8. Evidence held insufficient to justify judgment foreclosing contractor's lien for labor performed by him in repairing and reconstructing residence, and for labor performed by a laborer. (I. C. A., secs. 44-501 to 44-516.)

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Miles S. Johnson, Presiding Judge.

Suit to foreclose mechanic's lien. Judgment for plaintiff and defendant appeals. Reversed and remanded with instructions.

Reversed and remanded with instructions. Costs awarded to appellant. Petitions for rehearing denied.

A. L. Morgan and Murray Estes, for Appellant.

When no allegation is made in the pleadings and no proof is produced at the time of trial relative to the amount of land necessary for the use of a structure, on which a mechanic's lien is being foreclosed, a finding by the court that all of the land described is necessary will not support the judgment and is not within the issues. (Green v. Chandler, 54 Cal. 626; Willamette S. M. Co. v. Kremer, 94 Cal. 205, 29 P. 633; Kern v. San Francisco Co., 19 Cal.App. 157, 124 P. 862; I. C. A., sec. 44-505.)

An original contractor shall be entitled to recover upon a claim of lien filed by him only such amount as may be due him according to the terms of his contract. (I. C. A., sec. 44-511; Riggen v. Perkins, 42 Idaho 391, 246 P. 962.)

J. H. Felton and Guy W. Wolfe, for Respondent.

Where the owner is required to make payments to the contractor as the work progresses and wrongfully refuses to pay according to such contract, it is a breach of contract, and the contractor can rescind and claim a lien upon the structure and real estate for the work done and materials furnished to the time of rescission and can sue and collect upon quantum meruit. (The South Fork Canal Co. v. Gordon, 6 Wall. 561 to 572, 18 L.Ed. 894; American-Hawaiian Eng. & Const. Co. v. Butler, 165 Cal. 497, 133 P. 280, Ann. Cas. 1916C, 44 (list of authorities at top of page 288); Fair-child-Gilmore-Wilton Co. v. Southern Ref. Co., 158 Cal. 264, 110 P. 951.)

HOLDEN, C. J. Budge, Givens and Ailshie, JJ., concur. Morgan, J., did not sit with the court at the hearing nor participate in the decision.

OPINION

HOLDEN, C. J.

On or about June 1, 1935, Gus Dybvig, a contractor, and Bertha L. Willis, a widow, entered into a written contract whereby Dybvig agreed to repair and reconstruct, for the sum of $ 1,785, a residence owned by the widow, located in the town of Moscow. The contract contained the provision that: "This agreement shall be attached to the sketches as approved by the owner, and all shall be known as the plans and specifications for this contract, and shall be binding on both parties hereto." The "plans" referred to were not drawn to any scale, but were roughly sketched with a lead pencil. June 19, 1935, a supplemental agreement was entered into between the parties, whereby Dybvig agreed to perform additional work and supply all materials in further repairing and reconstructing the residence, for which the widow agreed to pay the additional sum of $ 125. The first contract provided, among other things, that

"The total cost to the owner shall be $ 1785 (seventeen hundred eighty five dollars), which shall be paid to the contractor as follows: One half upon the completion of the roof, as designed and shown. The remaining half shall be paid to the contractor upon completion of the job, and when the contractor has shown the owner that he has paid all bills, labor, material, etc., and has protected the owner from any loss whatsoever. All labor and all subcontractors shall be paid by the owner, and shall be deducted from any money due the contractor."

Shortly after the first contract was entered into, Dybvig began repairing and reconstructing the residence. About the end of the month, he claimed to have completed the roof and requested payment of one-half of the contract price.

July 3, 1935, Bertha L. Willis notified Dybvig, in writing, "that if you do not have skilled laborers, approved by me, on the property under contract with you, at work, Friday morning, July 5th, at 8 o'clock, I shall be obliged to put laborers to work in order to protect the property and furnishings."

The owner did not pay, as demanded by the contractor, and the contractor did not comply with the above demand of the owner. July 23, 1935, Dybvig filed a claim of lien, in substance, as follows: That, as an original contractor, he claimed a lien upon certain property, describing it; that said claim of lien was for materials furnished and labor performed in the repair and reconstruction of the residence located on the lot described in the claim of lien; that Bertha L. Willis was the owner of the real estate so described; that about June 1, 1935, she employed claimant to perform labor and furnish materials for repairing and reconstructing the dwelling, and to draw plans and specifications for such repair and reconstruction for the total consideration of $ 1,785; that thereafter she agreed to pay the additional sum of $ 125 for extra work and labor not included in the original contract; that, on or about June 1, 1935, claimant began work and labor and the preparation of plans and specifications for the repair and reconstruction of the dwelling; that claimant faithfully performed and complied with "all of the agreements contained between the said Bertha L. Willis and said claimant, Gus Dybvig, and had performed labor upon said dwelling house up to the 3rd day of July, 1935, of the reasonable value of Six Hundred Eighteen and 20/100 Dollars ($ 618.20) and had furnished materials in the reconstruction and repair of said building in the total sum of Three Hundred Ninety-seven and 88/100 Dollars ($ 397.88)"; that it was further agreed between the parties that one-half of the $ 1,785 should be paid when the new roof was placed on the building; that the roof was placed on the building prior to July 3, 1935; that Bertha L. Willis "refused to pay the one-half (1/2) of the contract price, or one-half (1/2) of Seventeen Hundred Eighty-five Dollars ($ 1785.00), according to said contract"; that on the 3d day of July, 1935, she notified claimant that she would refuse to perform her part of the contract or pay any part of the contract price, save and except $ 500, which had already been paid; that the amount he claimed "for the reasonable value of the labor performed and furnished by the said Gus Dybvig is the sum of Six Hundred Eighteen and 20/100 Dollars ($ 618.20)"; that the "reasonable value of all materials furnished by the said Gus Dybvig therefor is the sum of Three Hundred Ninety-seven and 88/100 Dollars ($ 397.88), and that no part thereof has been paid except the sum of Five Hundred Dollars ($ 500.00)."

October 18, 1935, Dybvig filed a complaint against Bertha L. Willis in which, so far as material here, it was alleged: That on or about June 1,...