Eccleston v. Hetting

• Decision Date: 04 November 1895
• Parties: ECCLESTON v. HETTING et al.
• Court: Montana Supreme Court

42 P. 105

17 Mont. 88

ECCLESTON v. HETTING et al.

Supreme Court of Montana

November 4, 1895

Appeal from district court, Silver Bow county; J. J. McHatton Judge.

Action by H. H. Eccleston against O. N. Hetting and others to enforce a mechanic's lien. There was judgment for defendants, and plaintiff appeals. Reversed.

This is an action on an account, and to foreclose a mechanic's lien. The defendant the Butte, Anaconda & Pacific Railway Company demurred to the complaint. The demurrer was sustained, and judgment entered for that defendant. Plaintiff appeals. The complaint set forth that the railroad company is the owner of certain land, to wit, a roadbed, with the railroad track thereon (describing it particularly); that Carroll & Co. entered into a contract with the railroad company, agreeing to furnish certain ties to the company, to be used in the construction of their railroad; that Carroll & Co. entered into a contract with the defendant Hetting to furnish said ties to the railroad company; that Hetting entered into a contract with plaintiff to haul said ties from the place where they were cut, and deliver the same at a point on the right of way of the railroad company, for 13 1/2 cents apiece; that plaintiff so hauled 2,757 ties, the contract price of which was $372.19; that upon said sum there is still due $281.24. The complaint then sets up further the proper allegations showing the obtaining of a lien against the said real estate of the railroad company. These allegations need not be recited, as what we have heretofore detailed gives the portion of the complaint as to which the contention upon the demurrer was decided.

Oliver M. Hall, for appellant.

Wm Scallon, for respondents.

DE WITT, J. (after stating the facts).

That a subcontractor of a subcontractor in the third degree is entitled to a lien, under our statute, was decided in Duignan v. Montana Club, 16 Mont. 189, 40 P. 294 which case follows to its legitimate conclusion the views which had been expressed preliminary thereto in the case of Merrigan v. English, 9 Mont. 113, 22 P. 454. We are of opinion that the facts in this case bring it within the interpretation of the statute made in the case of Duignan v Montana Club. Here, Carroll & Co. were the contractors Hetting was subcontractor, and the plaintiff the second subcontractor. We do not think that Carroll's contract was simply for a sale and delivery of the ties. It was for...