Fields v. Daisy Gold Min. Co.

• Decision Date: 05 July 1902
• Docket Number: 1364
• Citation: 25 Utah 76,69 P. 528
• Court: Utah Supreme Court
• Parties: SEWARD H. FIELDS, Trustee, and BANK OF COMMERCE, a Corporation, Appellants, v. THE DAISY GOLD MINING COMPANY, a Corporation, A. T. MOON, Receiver, and the SALT LAKE HARDWARE COMPANY, a Corporation, et al., Respondents

69 P. 528

25 Utah 76

SEWARD H. FIELDS, Trustee, and BANK OF COMMERCE, a Corporation, Appellants, v. THE DAISY GOLD MINING COMPANY, a Corporation, A. T. MOON, Receiver, and the SALT LAKE HARDWARE COMPANY, a Corporation, et al., Respondents

No. 1364

Supreme Court of Utah

July 5, 1902

Appeal from the Third District Court, Tooele County.--Hon. A. N Cherry, Judge.

Action by Seward H. Fields, Trustee, and the Bank of Commerce, to foreclose a trust deed executed by the Daisy Gold Mining Company. The Salt Lake Hardware Company also commenced a suit against the mining company for the purpose of foreclosing its mechanic's lien. The hardware company appeared in the action commenced by Fields and the bank, and answered, and set forth its claim under the mechanic's lien by way of cross-complaint. The two cases were consolidated and tried together. From a decree awarding the hardware company a prior lien, the plaintiffs appealed.

AFFIRMED.

Messrs Pierce, Critchlow & Barrette for appellants.

By section 2000, Revised Statutes 1898, the trust deed became notice to all persons including lienholders from the time it was filed with the recorder. As we have seen the last order and sale was on the ninth day of December, 1899, the trust deed was recorded on the thirteenth and the next order and sale was on the eighteenth of December, or five days after the trust deed became notice to all the world of its contents. We thus see that if these orders or sales constituted separate transactions then the order and sale of the eighteenth certainly was after the trust deed took effect.

But we are not without authority that transactions such as described in this case constitute separate and independent transactions, and can not be tacked together for the purpose of claiming priorities under the mechanic's lien law. "Where materials are furnished in carload lots, under separate orders, each delivery and order constitutes a separate transaction." Heltzell v. Railroad Co., 77 Mo. 315; Phillips v. Duncan, Am. Law Reg. 304.

In the absence of a contract under which goods or labor are to be furnished continuously, all payments apply to the oldest items, and when these are paid and the indebtedness therefore cancelled, they are no longer existing, and can not be referred to or considered as existing for the purpose of fixing a date to which the lien will relate.

C. C Dey, Esq., W. H. Bramel, Esq., and C. W. L. Stevens, Esq., for respondent Salt Lake Hardware Company.

The bill of exceptions in this case does not purport to contain all the evidence upon the subject, or all the evidence upon the question involved, or all the evidence material to that question, or any other question, so that the finding of the court stands unimpeached; the presumption being that there was competent evidence to sustain the findings of the court. Cochrane v. Bussche, 7 Utah 233; Culmer v. Caine, 22 Utah 216; 2 Ency. Pl. and Pr., p. 441.

The case of Helena Steam Heating and Supply Co. v. Wells (Mont.), 40 P. 78, 79, and cases cited, thus lays down the rule: "We think the proper rule to be, and the one supported by ample authority, that when all the items in the account relate to one transaction, and is between the same parties, it constitutes a continuous account, regardless of different times of delivery, and dates from the day of the last item." Fidelity Ins. Co. v. Roanoke Iron Co., 81 F. 450-1; Cary Hardware Co. v. McCarty, 50 P. 750, and cases cited; 15 Am. and Eng. Ency. of Law (1 Ed.), 74, and cases cited; Patten v. Matter, 52 N.E. 173; 2 Jones on Liens, sees. 1435, 1436, and cases cited; Lamb v. Hanneman, 40 Iowa 41; Phillips on Mechanics Liens, p. 566; O'Leary v. Burns, 53 Miss. 171; Fulton Iron Works v. North C. C. M. & S. Co., 80 Mo. 265.

Payments and settlements do not break the running account into parts. Craddock v. Dwight, 85 Mich. 587; Lamb v. Hanneman, 40 Iowa 41; Cox v. R. R. Co., 44 Cal. 18; Malone v. Big Flat G. M. Co., 76 Cal. 578, 586.

MINER, C. J., delivered the opinion of the court. BARTCH, J., concurs. BASKIN, J., dissents.

OPINION

MINER, C. J

STATEMENT OF FACTS.

In May, 1899, the Daisy Gold Mining Company, a corporation organized under the laws of Nebraska, was the owner and engaged in developing and working its mine in Tooele county, Utah. About this time it commenced to forward orders to the Salt Lake Hardware Company for goods, supplies, machinery, and tools with which to work and operate its mine and mill. These orders were filled several times each month. The goods shipped were accompanied by an invoice, and monthly accounts were rendered to the mine at the end of each month, which included the items of all goods shipped and payments made during the month previous. These orders for material were continued, as needed, several times during each month until the spring of 1900, and payments were made on the accounts rendered at irregular periods. The account in question commenced November 1, 1899, and ended February 8, 1900. According to the account presented in the record, the mine was indebted to the hardware company for such goods as follows: July 31, 1899, $ 2,381.20; October 31, 1899, $ 827.99; November 30, 1899, $ 79.90; December 31, 1899, less payments made, $ 1,110.90; January 3, 1900, $ 1,327.24. Prior to February 9, 1900, more goods were sold and delivered in like manner. On December 18, 1900, there was due the hardware company for principal and interest on such account $ 2,107.94. On December 5, 1899, the Daisy Gold Mining Company was indebted to the plaintiff, Bank of Commerce, for borrowed money, in the sum of $ 15,000, and on the same day it borrowed from several other parties interested with the Bank of Commerce the sum of $ 10,000 in addition, and executed its trust deed to Seward H. Fields, as trustee for the bank and others, to secure the payment of said collective indebtedness, amounting to the sum of $ 25,000, and the trust deed was duly recorded on the thirteenth day of December, 1899. The money arising from said $ 10,000 notes so borrowed and secured was used by the mining company with which to pay its debts, and the sum of $ 1,097.76 was paid to the hardware company January 29, 1900, from such money so borrowed, secured by such deed of trust. The intention of the bank and trustee was to pay off all the debts of the mining company with the money so borrowed, so that the deed of trust would be the first lien on the mining property, but the hardware company had no notice of such intention, or of the source of payment of said sum to them. On the twenty-eighth day of February, 1900, the Salt Lake Hardware Company filed its lien upon the Daisy Gold Mining Company, claiming said sum of $ 2,007.24, with interest, for goods and materials sold and delivered to the mine from November 1, 1899, to the eighth day of February, 1900. Payment on the trust deed being in default, Fields, the trustee, and the Bank of Commerce, on February 28, 1900, brought this action to foreclose the lien created by the trust deed, impleading the Salt Lake Hardware Company, the Daisy Gold Mining Company, and A. T. Moon, as receiver, and others, as defendants. The Salt Lake Hardware Company commenced suit against the mining company for the purpose of foreclosing its mechanic's lien. The hardware company appeared in the action commenced by Fields and the bank, and answered, and set forth its claim under the mechanic's lien by way of cross-complaint, which was also answered. These two cases, being at issue, were tried together, and the determination of one will also determine the other.

As between the Salt Lake Hardware Company and the trustee, the priority of the lien was given over to the hardware company and it was directed by the decree that the hardware company should be first paid the amount of its claim, fixed at the sum of $ 2,007.24, with interest from December 18, 1900; and that Fields, trustee, should next be paid the amount of his claim under his trust deed, amounting to $ 27,797.40, with interest. The mine was sold upon the decree, the hardware company's claim was paid in full from the proceeds of sale, and Fields and the bank received $ 20,041.86, leaving a deficiency of over $ 10,000 still due Fields and the bank on the trust deed. Fields and the bank appeal from the decree and order, claiming that the court erred in awarding the hardware company a prior lien to that of Fields and the bank under the trust deed. The appellants claim, in substance, that the lien of the hardware company should not relate back to any earlier date than December 31, 1899, because the goods were furnished under numerous complete independent contracts or orders of sale, and that the account of sale made was not continuous in its nature, and at about that time, if the credits were properly kept, nearly all of its entire bill was paid when the trust deed was recorded on December 13, 1899, and that the Salt Lake Hardware Company should not be allowed to go back of the date of the last item in its account that should be considered paid by the last credit without reference to monthly rests, and that the law should apply the payments in the order in which the bills were contracted, paying the oldest bills first, regardless of the continued accounts. The court found that the materials furnished by the Salt Lake Hardware Company were furnished for the purpose of working, developing, and preserving the Daisy Gold Mining Company's mine, and that the latter was indebted to the Salt Lake Hardware Company in the sum of $ 2,007.24, with interest, for such materials so furnished upon a continuous running account, the first of such materials having been furnished on the first day of November, 1899, and the last on the eighth day of February, 1900, and gave the hardware company a...