Federal Land Bank of Spokane v. Green

• Decision Date: 08 March 1939
• Docket Number: 7819.
• Citation: 90 P.2d 489,108 Mont. 56
• Parties: FEDERAL LAND BANK OF SPOKANE v. GREEN et al.
• Court: Montana Supreme Court

90 P.2d 489

108 Mont. 56

FEDERAL LAND BANK OF SPOKANE v. GREEN et al.

No. 7819.

Supreme Court of Montana

March 8, 1939

Rehearing Denied May 26, 1939.

Appeal from District Court, Fifteenth Judicial District, Roosevelt County; J. E. Rockwood, Judge.

Action to foreclose a mortgage by the Federal Land Bank of Spokane against Fremont T. Green and others, wherein defendant J. C Herman filed a cross-complaint seeking foreclosure of a materialman's lien. Upon the death of J. C. Herman, A. V Appelgren, administrator, was substituted as a party defendant. From a judgment in favor of cross-complainant defendant M. B. Fargen and plaintiff appeal.

Affirmed.

H. R. Newton and K. W. MacPherson, both of Spokane, Wash., and T. Dignan and O. Hallett, both of Glasgow, for appellants.

Frank M. Catlin and Arlie M. Foor, both of Wolf Point, and John M. Kline, of Glasgow, for respondent.

ANGSTMAN Justice.

This action was brought by the plaintiff bank to foreclose a real estate mortgage executed to it by defendants Fremont T. and Mary L. Green. Defendant J. C. Herman filed an answer and cross-complaint in which he asserted and asked foreclosure of a materialman's lien for lumber and materials alleged to have been furnished by him to complete the construction of a building situated on the lands involved in the complaint. Before trial Herman died and Appelgren, the administrator of his estate, was substituted in his place as a party defendant. Also prior to the trial the bank's mortgage was placed in good standing, and it was stipulated that the trial court should proceed upon the cross-complaint for foreclosure of the materialman's lien, the bank's reply thereto and Fargen's answer, which was in effect a general denial of the allegations of the cross-complaint.

Trial was to the court without a jury. The court found the issues in favor of cross-complainant that the materialman's lien was prior and superior to any right, title, interest or lien of Fargen or the bank upon the dwelling house and one acre of land, and directed its foreclosure. Motion for new trial being denied, this appeal was taken by Fargen and the bank.

The first point raised by the appeal is that the proof was not sufficient to establish that Herman furnished the materials in question, it being contended that the evidence shows conclusively that the materials were furnished by the Farmers Lumber Company, a co-partnership consisting of Herman and Nason, and that the action should have been brought by the surviving partner under section 10261, Revised Codes, and White v. Prahl, 94 Mont. 345, 22 P.2d 315, and other cases to the same effect.

The evidence bearing upon the question as to who furnished the materials is as follows:

Green, who admitted purchasing the materials, said he purchased them from J. C. Herman. Fred C. Williams, who was working for Herman, also testified that Green bought the materials from Herman; that sometimes Herman made the sales and sometimes he did, and whoever made the sales entered the transactions in the account book. On cross-examination Williams testified as follows:

"Q. Now then, by the way, whose record is this? A. Mr. Herman's record.

Q. It isn't a record of any other lumber company? A. No, sir.

Q. The Farmers Lumber Company? Is this a record of the Farmers Lumber Company? A. Mr. Herman was running the business at that time. ***."

He further testified on cross-examination:

"Q. Never mind the corporation. It is a record of the Farmers Lumber Company, isn't that correct? A. Yes.

Q. And Mr. Herman was merely running it, wasn't that a fact? A. Yes.

Q. He was merely manager of it? A. Yes.

Q. He was a partner in it, wasn't he? A. So far as I know.

Q. Who is the other gentleman here, this Mr. Nason? He was another partner in it, wasn't he? A. He wasn't in the state at all.

Q. Was he a partner in the business at the time, just temporarily absent? A. Yes.

Q. He was an owner in it at the same time, wasn't he? A. I think so.

Q. Besides Mr. Nason now being an owner in it, there was Mr. Herman and who else? A. Nobody else that I know of.

Q. Just those two. They were the owners of the Farmers Lumber Company, weren't they? A. Yes.

Q. And this is a record of the Farmers Lumber Company--of those two individuals, isn't it? A. Yes, sir."

A circumstance tending to show that the account was that of the Farmers Lumber Company was the account itself which was filed with the lien and made an exhibit in the cross-complaint, which sets forth:

"Fremont Green,

Benrud, Mont.

In account with

Farmers Lumber Co."

However, the lien which was introduced in evidence had attached to it a copy of the account in which it is stated:

"Fremont Green, Benrud, Mont.

In account with

J. C. Herman

Farmers Lumber Company."

We are advised in the brief that the billhead was printed and the name of "J. C. Herman" was written in with a typewriter. This, however, does not appear from the record. It is all in typewriting here. The record is in such a condition that a finding either way might have been warranted; that is, there is some evidence that Herman furnished the materials sold, and there is also some evidence upon which a finding might have been based that the partnership did so. In such a situation we accept the conclusion of the trier of the facts.

The rule is that even in the case of discrepancy between the testimony of witnesses for one party, if that most favorable to him sustains his right of recovery, the finding in his favor must be sustained, even though there be room for a finding against him on other evidence submitted by him. Hardie v. Peterson, 86 Mont. 150, 282 P. 494; Gohn v. Butte Hotel Co., 88 Mont. 599, 295 P. 262; In re Cummings' Estate, 92 Mont. 185, 11 P.2d 968; Stranahan v. Independent Natural Gas Co., 98 Mont. 597, 41 P.2d 39.

The reason why an action must be brought in the name of the real party in interest is to protect the adversary from another suit on the same cause, but by a different party. The reason for the rule does not apply here. No other party can assert the lien. If Nason has any interest in the claim he cannot harass the bank or Fargen, but must look to Herman's estate.

The appellants next contend that the lien itself is insufficient in that it does not describe the building on which the lien is claimed; that there are several buildings on the land of a frame character--a dwelling house, a hog house, a granary, a barn, chicken shed and a blacksmith shop.

The lien recites that J. C. Herman furnished lumber and building material "for that certain frame building erected upon the certain lot, piece or parcel of land hereinafter described ***." The lien contained a description of the land by legal subdivisions, together with a list of materials furnished, which list was expressly made a part of the lien. The question is, Does this lien meet the requirements of section 8340, Revised Codes, reading as follows: "Every person wishing to avail himself of the benefits of this chapter must file with the county clerk of the county in which the property or premises mentioned in the preceding section is situated, and within ninety days after the material or machinery aforesaid has been furnished, or the work or labor performed, a just and true account of the amount due him, after allowing all credits, and containing a correct description of the property to be charged with such lien, verified by affidavit, but any error or mistake in the account or description does not affect the validity of the lien, if the property can be identified by the description; which paper containing the account, description, and affidavit is deemed the lien, and when there is an open account between the parties for labor, material, or machinery, such lien may be filed within ninety days after the date of the last item in such account, and include all items and charges contained therein, for material or machinery furnished for, or work performed on, the property on which the lien is claimed."

This court has long since held that this section, together with all sections referring to liens, must be liberally construed; that "while the right to a lien is purely statutory, and compliance with the statute is necessary to the existence of a lien (McGlauflin v. Wormser, 28 Mont. 177, 72 P. 428), the necessary steps once having been taken, the lien law is subject to the most liberal construction, for it is remedial in character, and rests upon the broad principle of natural equity and commercial necessity." Stritzel-Spaberg Lumber Co. v. Edwards, 50 Mont. 49, 144 P. 772; see, also, Rogers-Templeton Lumber Co. v. Welch, 56 Mont. 321, 184 P. 838.

"If the description of the building itself is sufficient to enable a person familiar with the locality to point it out as the only one corresponding with the description contained in the lien, it meets all the requirements of the statute." Midland Coal & Lumber Co. v. Ferguson, 61 Mont. 402, 202 P. 389, 390. In other words, the requirements of the statute are merely to impart notice to any interested party that the lien attaches to a certain piece of property. See Johnson v. Erickson, 56 Mont. 550, 185 P. 1116; Ivanhoff v. Teale, 47 Mont. 115, 130 P. 972.

The appellants would confine the description to the words "That certain frame building." The respondent argues that if reference is made to the list of materials in the exhibit attached to and made a part of the lien, there can be no uncertainty in ascertaining the building to which the lien applies, for that list contains such items as one kitchen cabinet, 1,500 feet of oak flooring, varnish and other items which would only go into the one building on the premises suitable for their purposes--the dwelling house, and that since...