Fitzpatrick v. Ernst

• Decision Date: 27 September 1907
• Docket Number: 15,111 - (86)
• Citation: 113 N.W. 4,102 Minn. 195
• Parties: THOMAS FITZPATRICK and Another v. CASPER ERNST and Others
• Court: Minnesota Supreme Court

113 N.W. 4

102 Minn. 195

THOMAS FITZPATRICK and Another v. CASPER ERNST and Others

Nos. 15,111 - (86)

Supreme Court of Minnesota

September 27, 1907

Action in the district court for Ramsey county to foreclose a mechanic's lien. The case was tried before Olin B. Lewis J., who found that plaintiffs were entitled to a lien in the sum of $109 and ordered a sale of the premises to satisfy the lien. From an order denying a motion to amend the findings and for judgment notwithstanding the findings, or for a new trial, plaintiffs appealed. Affirmed.

SYLLABUS

Mechanic's Lien.

Plaintiffs agreed with the owner of a building in 1902 to make all the improvements, alterations, and repairs which the owner of the building would need in the future at the regular price of work and material, with ten per cent. added thereto. From time to time between September, 1902, and September, 1903, work was ordered and performed. A bill was presented at the end of the first contract, and afterward about monthly. On November 14, 1903, plaintiffs filed the statutory statement to secure a mechanic's lien. In September, 1903, defendant became the owner of the building under foreclosure of a mortgage. It is held that plaintiffs could recover on their lien such portions of the work only as had been done within ninety days next prior to its filing.

C. D. & R. D. O'Brien, for appellants.

John F. Fitzpatrick, for respondent.

OPINION

JAGGARD, J.

This is an action to foreclose a mechanic's lien. The plaintiffs claim a lien for labor and materials supplied to Casper Ernst for repairs and changes on the Ernst Building, an eight-story office building. Ernst, the owner of the premises during the time the materials and labor were supplied, on September 16, 1903, mortgaged them to the defendant, George Meyer, to secure the sum of $22,000. Meyer had no actual knowledge nor notice of any claim of the plaintiffs when he took his mortgage. The title afterward passed to him by foreclosure. The premises were also subject to other mortgages. The court below ordered judgment for a lien in favor of the plaintiffs for $109, being the amount of all jobs finished within ninety days of the time of filing the lien statement in the register of deeds' office. From an order denying plaintiffs' motion for judgment and for a new trial, and to amend the findings, this appeal was taken.

The essential question presented by the assignments of error is whether the items of labor and material furnished by the plaintiffs and appellants to the defendant Ernst between September 8, 1902, and September 19, 1903, were furnished under one continuing contract, or under distinct and separate contracts.

The testimony of one of the plaintiffs determines this controversy. From an examination of the direct and cross-examination of this witness, we conclude that the trial court was justified in finding, in effect, that the work consisted of a number of independent jobs, and not one entire contract. The plaintiffs agreed to make "all improvements and repairs and alterations that he (the owner of the building) would want in the future" "at the regular price, the net price, adding ten per cent. to the regular price of day's work, and ordinary pay for material." From time to time, when work was ordered, it was performed. A bill was presented at the end of the first contract, and afterward, and before the filing of the lien, about monthly. Each contract was based upon a specific order for particular work. Each performance was individual. The only thing agreed upon was the price to be paid. Price alone cannot make a contract. This was not an agreement for the "performance of the whole work," in the sense in which that phrase is currently used in connection with building contracts. Under this agreement work might or might not have been ordered. Obligation was imposed only as to work specifically ordered at a particular time. Upon the ordinary building contract the builder undertakes to construct or repair a particular improvement. He is under obligation so to do, and the owner to pay him the agreed or reasonable compensation therefor. In effect here was a series of contracts at an agreed price.

Considerations of inconvenience necessitate the conclusion thus reached. While a building is in progress of...