Flenniken v. Liscoe

• Decision Date: 27 April 1896
• Citation: 66 N.W. 979,64 Minn. 269
• Parties: FLENNIKEN v LISCOE.
• Court: Minnesota Supreme Court

64 Minn. 269

66 N.W. 979

FLENNIKENvLISCOE.

Supreme Court of Minnesota.

April 27, 1896.

(Syllabus by the Court.)

1. A mechanic's lien is waived or discharged where the parties enter into a special agreement inconsistent with the existence of the lien; as, for example, by the laborer or material man extending credit to the owner beyond the statutory period for bringing an action to enforce the lien.

2. This rule is not changed by Gen. St. 1894, § 6243 (providing that the taking of a promissory note for labor or material shall not discharge the lien), where, by the terms of the note, the time of payment is extended beyond the date fixed by statute for bringing an action to enforce the lien.

Appeal from district court, Todd county; L. L. Baxter, Judge.

Action by R. B. Flenniken against Charles Liscoe. Judgment for defendant, and plaintiff appeals. Affirmed.

J. D. Jones and Longueville & McCarthy, for appellant.

B. F. Hartshorn and Coppernoll & Willson, for respondent.

MITCHELL, J.

This was an action to enforce a mechanic's lien for labor and material furnished by the plaintiff to the defendant for building a mill. According to the terms of the contract, plaintiff's compensation was to be paid, part at the date of the contract, part when certain machinery was delivered, and the balance one year after the completion of the mill by defendant, giving plaintiff his promissory note therefor, “to be paid on or before one year after date.” The first and second payments were made according to the contract. The mill was completed on April 21, 1893, that being the day on which, according to both the lien statement and the complaint, the last item of labor or material was furnished. Thereupon defendant executed to plaintiff his negotiable promissory notes for the balance due on the contract. These notes bore date April 21, 1893, and, by their terms, were payable “on or before one year after date.” This action was commenced on April 20, 1894. The demand for which a lien is claimed is the same as that represented by these notes.

The only question presented by this appeal is whether plaintiff's right to a lien was waived or discharged by his accepting the promissory notes. The statute provides that every action to enforce a mechanic's lien shall be commenced “within one year from furnishing the last item of labor,” etc., “for which such lien is had.” Gen. St. 1894, § 6238. Also, that “the taking of a promissory note or other evidence of indebtedness for labor performed or skill, material or machinery furnished under the provisions of this act shall not discharge the lien thereby given for the same, unless expressly received in payment therefor and so specified in such note or other evidence of indebtedness.” Id. § 6243. As a lien in favor of laborers and material men is expressly given by statute, it ought not to be considered waived except by plain acts. But it is a right that may be waived by the express agreement of the party in whose favor it exists. It may also be waived by implication arising from his conduct. If he makes a special agreement inconsistent with the right to a lien, the lien will be destroyed; or, otherwise expressed, if he enters into a special contract inconsistent with the operation of the lien, the lien is waived by the legal effect of such contract. This is a general principle, applicable to all liens created by operation of law. A familiar example of its application is where credit is given by contract to the shipper for the price of transportation beyond the time when the property is to be delivered and placed out of the carrier's control. The principle is too well settled to require the citation of authorities. Hence it has been, so far as we are advised, universally held that, if credit has been given extending beyond the statutory period for instituting a suit to enforce a lien, the lien is waived. Phil. Mech. Liens, § 281; Willison v. Douglas, 66 Md. 99, 6 Atl. 530;Ehlers v. Elder, 51 Miss. 495;Pryor v. White, 16 B. Mon. 605; Quinby v. City of Wilmington, 5...