Fitzgerald v. Blueher Lumber Co.

• Decision Date: 15 February 1971
• Docket Number: No. 9086,9086
• Parties: Judson H. FITZERALD and Charlotte M. Fitzgerald, his wife, Defendants-Appellants, Superb Cabinet Shop, Blueher Lumber Co., Inc., Kimbrough-Carpenter, Inc., Carroll & Loy Plumbing & Heating Corp., Defendants-Cross-Claimants and Appellees, Mock Homes, Inc., Defendant-Appellee and Cross-Appellee, v. BLUEHER LUMBER COMPANY, Inc., Defendant-Cross-Claimant-Appellee and Cross- Appellant.
• Court: New Mexico Supreme Court

Page 100

481 P.2d 100

82 N.M. 312

Judson H. FITZERALD and Charlotte M. Fitzgerald, his wife,

Defendants-Appellants, Superb Cabinet Shop, Blueher Lumber

Co., Inc., Kimbrough-Carpenter, Inc., Carroll &

Loy Plumbing & Heating Corp., Defendants-Cross-Claimants and Appellees, Mock Homes, Inc., Defendant-Appellee and Cross-Appellee, v. BLUEHER LUMBER COMPANY, Inc.,

Defendant-Cross-Claimant-Appellee and Cross-

Appellant.

No. 9086.

Supreme Court of New Mexico.

Feb. 15, 1971.

Hines & Sullivan, Albuquerque, for appellants

Perry S. Key, Albuquerque, for appellee Kimbrough-Carpenter.

Oliver Burton Cohen, Albuquerque, for appellee Blueher Lumber.

Menig, Sager & Curran, Albuquerque, for appellee Superb Cabinet Shop.

OPINION

COMPTON, Chief Justice.

This case is one of a series which resulted from the bankruptcy of Mock Homes, Inc., a general contractor, after the sale of various residential properties and prior to the time for filing labor and materialmen's liens had expired. See Brito v. Carpenter, 81 N.M. 716, 472 P.2d 979; Carpenter v. Merrett, 82 N.M. 185, 477 P.2d 819 (Decided December 7, 1970); and Daughtrey v. Carpenter, 82 N.M. 173, 477 P.2d 807 (Decided December 14, 1970).

This action was filed by appellee Kimbrough-Carpenter, Inc., a subcontractor under Mock Homes, Inc., to foreclose a labor and materialmen's lien against the home of appellants, Judson and Charlotte Fitzgerald. The Fitzgeralds had purchased Lot 10, Block 7 of Desert Terrace, Unit No. 2 prior to the time for filing of liens had expired. The complaint joined other lien claimants, some of whom filed cross-claims.

This appeal is by the home owners from a judgment in favor of appellees, Superb Cabinet Shop, Blueher Lumber Company and Kimbrough-Carpenter, Inc. The claims of the other defendants have either bees settled or dismissed without appeal.

Appellants first contend that the trial court erred in denying their motion to dismiss the cross-complaints of appellees, Blueher and Superb Cabinet, for failure to commence timely action. This point was also raised in Daughtrey v. Carpenter, supra, and we think our ruling there is controlling here. The pleadings of the cross-complainants contained certificates of service of mailing to opposing counsel of record similar to those found sufficient in Daughtrey. Rule 5(a) and (b) of the Rules of Civil Procedure (Section 21--1--1(5)(a) and (b) N.M.S.A. 1953) do not require service of a summons with a cross-claim except on parties in default. Daughtrey v. Carpenter, supra.

Appellants next contend that the trial court erred in admitting into evidence the claim of lien of appellee Blueher. A similar claim also was made in Daughtrey. The facts here as to the filing of the original and the 'supplemental lien' and the additions placed thereon are the same, except, here the 'supplemental lien' was not reverified by Blueher's general manager. Also, a photostatic copy of the original lien, certified by the county clerk, rather than the 'supplemental lien' was placed into evidence by the appellee.

Appellants contend that the alteration of the original instrument voided it; however, they do not claim any deficiency in the original instrument as such. This claim of error is without merit. Copies of documents, properly certified, were admissible. Section 21--1--1(44)(a)(3) N.M.S.A.1953. Moreover, no prejudice is shown to the appellants by the introduction of the photostatic copy. Compare Crego Block Co. v. D. H. Overmyer Co., 80 N.M. 541, 458 P.2d 793; Daughtrey v. Carpenter, supra.

Appellants contend that the trial court erred in refusing to grant their motion to dismiss the cross-claim of appellee Blueher for failure to prove that the materials were incorporated into appellants' property. We find no error in this regard. Appellants cite as authority for their position Panhandle Pipe and Steel, Inc. v. Jesko, 80 N.M. 457, 457 P.2d 705. That case is distinguishable on its facts. In Panhandle, material for two different destinations was shipped under a single invoice, whereas, here, the material listed on each separate invoice placed into evidence was shipped to only one destination, appellants' property. The invoices admitted into evidence, together with the testimony of Michael Pushnik, outside salesman for appellee Blueher, show that he sold the materials to Mock Homes, Inc. Milton Wade, general manager of Blueher, testified that the materials were delivered to appellants' property. Use of the materials in appellants' home may be presumed from such delivery. Panhandle Pipe and Steel, Inc. v. Jesko, supra. See Annot., 39 A.L.R.2d 394.

Appellants make the same contention with regard to the claim of appellee Kimbrough-Carpenter, Inc., that is, failure to prove delivery and incorporation into appellants' property. We also find no merit in this point. Substantial...