Garland v. Bear Lake & River Water Works & Irrigation Co.

• Decision Date: 30 August 1893
• Citation: 9 Utah 350,34 P. 368
• Parties: WILLIAM GARLAND, RESPONDENT AND APPELLANT, v. BEAR LAKE AND RIVER WATER WORKS AND IRRIGATION COMPANY AND ANOTHER, APPELLANTS, AND COREY BROTHERS & CO., RESPONDENTS
• Court: Utah Supreme Court

34 P. 368

9 Utah 350

WILLIAM GARLAND, RESPONDENT AND APPELLANT, v. BEAR LAKE AND RIVER WATER WORKS AND IRRIGATION COMPANY AND ANOTHER, APPELLANTS, AND COREY BROTHERS & CO., RESPONDENTS

Supreme Court of Utah

August 30, 1893

APPEALS from a judgment of the district court of the first district and from an order refusing a new trial, Hon. James A. Miner, judge. The facts are stated in the opinion of the court. The former cases are found at the case of Garland v. McMartin, 8 Utah 151, where the facts are fully set forth in the report preceding the opinion. It appeared from the record in this case that judgment had been rendered in the former suits against the Irrigation Company, and at the time this appeal was taken to the supreme court of the Territory, the judgment of the supreme court reversing the case of Garland v. McMartin had not been rendered, although the court in its opinion infra notices the fact. The findings of fact in this case are as follows: That the Bear Lake and River Water Works and Irrigation Company and the Jarvis-Conklin Mortgage Trust Company are corporations; that August 16, 1889, said irrigation company entered into a contract with William Garland, the plaintiff, for the performance of work upon its canals in Cache and Box Elder counties, and plaintiff began work and continued it until December 10, 1890, and fully complied with his contract, and did work and furnished materials to the sum of $ 623,310.10 and received payment therefor the sum of $ 544,145.55; that interest upon deferred payments to the amount of $ 1,085.95 had accrued up to December 20, 1890; that the sum of $ 89,551.33 is now due from said irrigation company to said Garland, for which he is entitled to a lien; that plaintiff sublet portions of the work to Annett and to McMartin, who fully performed their contracts with plaintiff; that both by plaintiff's contract with said irrigation company, and said plaintiff's contracts with Annett and McMartin, the engineer of the irrigation company was made an arbitrator for the measurement and classification of work done on the canals; that July 28, 1890, Annett began an action against plaintiff, alleging that the said engineer and arbitrator had in bad faith made erroneous estimates and under-estimated the work done by said Annett, and asked that said estimates be set aside; that in this action such proceedings were had that the irrigation company was made a party defendant, came in and offered testimony, and the court found that the estimates were fraudulent, and that plaintiff in consequence was entitled to recover from said irrigation company the sum of $ 17,411.01; that on May 3, 1891, judgment was entered thereon that in another action between McMartin and said Garland, on a precisely similar state of parties and of the proof judgment was entered in favor of plaintiff and against said irrigation company on May 3, 1891, for $ 5,907.14; that from these two judgments defendant irrigation company appealed, gave no supersedeas bond, and they are still pending in the supreme court of Utah Territory undetermined; that on December 23, 1890, less than sixty days after work was done, plaintiff filed his lien in due form, and on September 24, 1891, brought an action thereon; that at the time the plaintiff filed his statement of lien, the actions of Annett and McMartin were undetermined, and plaintiff had no knowledge of the truth or falsity of their claim in regard to the false estimates, and therefore set out in his statement of lien that should said estimates prove to be false, his claim for a lien would be greater by $ 23,318.15, the amount for which plaintiff afterwards obtained judgment. The findings, then, found the facts as to Corey Bros. and Company's lien, and as to the Jarvis-Conklin deed of trust. As a conclusion of law, the court below found that Garland was entitled to a lien for his claim for work done, but was not entitled to a lien for the amount of the judgments rendered in his favor in the Annett and McMartin suits, and judgment was rendered accordingly. Both Garland and the irrigation company and the Jarvis-Conklin Company appealed.

Affirmed.

Mr. W. L. Maginnis, for the appellant Garland.

The court should have allowed the lien for the amount of the judgments already obtained against the irrigation company on account of the fraudulent estimates. The objection that those judgments are a merger of the right to a lien and foreclosure of the same is not tenable. Fox v. Seal, 22 Wall. 424; Brennan v. Swasey, 16 Cal. 141; Germania Co. v. Wagner, 61 Cal. 349; 2 Jones on Liens, sec. 1552; West v. Fleming, 18 Ill. 248; Dickens v. Corbett, 11 Nev. 277. Plaintiff was entitled to a personal judgment for the full amount due him on account of work done on the canal irrespective of his right to a lien. Our lien statute was taken from Colorado, and adopted with the judicial construction put upon it. Cannon v. Williams, 23 P. Rep. 456. Such action of debt will lie upon a judgment even though an execution could be issued upon it, and actions on decrees in equity are not different from those upon judgments at law. Cases were cited to these points, and Black on judgments, secs. 958, 962, and Freeman on Judgments, sec. 434. The right to execution is not suspended by an appeal in which no supersedeas is given, but only a cost bond, and an action may be maintained thereon as if no appeal had been taken.

Mr. Henry M. Beardsley, and Messrs. Evans and Rogers, for the appellant, the Irrigation Company and the JarvisConklin Trust Company.

All of Garland's rights existed under the old law and hence must be enforced under the old law. Cahoon v. Leavitt, 6 Cal. 295; Douglas v. Zinc Co., 56 Mo. 399; Tell v. Woodruff, 47 N.W. 262; Gilliland v. Schuyler, 9 Kan. 569; Kansas v. Showers, 34 Kan. 269; Dillon v. Linder, 36 Wis. 344.

There was no ownership in the land in the irrigation company when the lien accrued, and hence the lien is of no avail. Underhill v. Corwin, 15 Ill. 556; Tracy v. Rogers, 69 Ill. 664; Monroe v. West, 12 Iowa 123; Squires v. Administrator, 27 Mo. 134; Steininger v. Raeman, 28 Mo.App. 594.

Garland had no lien and hence no priority. Corey Bros. & Co. obtained a lien which attached May 1, 1890, the date of their contract, but the whole of the bonds were delivered and paid for prior to January 24, 1891, and one and one quarter million dollars were not taken prior to May 1, 1890, but the trust company was under contract to take them as soon as the canal was completed. Jones on Mortgages, 375; Platt v. Griffith, 27 N.J. Eq. 207; Maroney's Appeal, 24 Pa. 372; Taylor v. La Bar, 25 N.J. Eq. 222; Macintosh v. Thurston, Id. 242; Loveless v. Webb, 62 Ala. 271.

Messrs. Kimball and Allison, for Corey Bros. & Co., respondents.

A mechanic's lien for work done and materials furnished takes precedence of any mortgage executed upon property which is to come into existence by that work. 1 Jones on Mortgages, sec. 158; Railway Co. v. Mellen, 12 Wall. 362; Williamson v. Railway Co., 28 N.J. Eq. 277, 29 N.J. Eq. 311. The Bear Lake Company acquired the canal subject to the lien, and it could give its grantee, the mortgagee, no greater right. Besides, the mortgagee took its mortgage with notice that the canal was not constructed, and that it would be when constructed subject to mechanics' liens. Trust Co. v. Railway Co., 47 Am. and Eng. Ry. Cas. 230; Brooks v. Railway Co., 101 U.S. 443; Paulsen v. Mauske, 126 Ill. 82, 9 Am. St. 532; Ellis v. Porter, 29 P. Rep. 879.

Mr. Sandford B. Ladd, for Garland, appellant and respondent.

The saving clause as to the remedy applied only to remedies existing at the time. Garland's remedy did not exist, because work was not completed. Hence his remedy is under the new law. Turner v. Saunders, 4 Scam. 533; People v. Livingston, 6 Wend. 526; Collins v. Warren, 63 Tex. 311. Even if the irrigation company had no ownership in the land, that consideration lies only in the mouth of the owner to urge.

ZANE, C. J. BARTCH, J., concurred.

OPINION

ZANE, C. J.:

It appears from this record that in 1889 the Bear Lake & River Water-Works & Irrigation Company undertook to construct a water ditch or canal through the counties of Cache and Box Elder, and that on the 16th of the following August the plaintiff contracted with the company to construct the first 12 miles of it; that he immediately entered upon its performance, and completed the work on October 31, 1890; that during its progress he sublet parts of it to Annett & Thompson and their assignors, and to McMartin, who performed the work let to them. All of the contracts provided that payments should be made on measurements and estimates of the company's engineer. It also appears that Corey Bros. & Co. did work on the canal under a contract bearing date May 1, 1890, with the company, and it further appears that on October 1, 1889, the company executed to the Jarvis-Conklin Mortgage Trust Company a deed of trust to all property it then owned or might acquire, to secure 2,000 of its bonds, of $ 1,000 each; that Annett & Thompson, in the summer of 1890, brought suit against Garland, alleging that the estimates of the company's engineer were fraudulent and incorrect, and claiming a greater sum. At the same time, Garland brought suit against McMartin, and he pleaded a set-off for work alleged to have been done for the former.

While these actions were pending, Garland finished his work, and filed his statement for a lien, and included in it the amount due, according to the measurement and estimate of the company's engineer, and the excess claimed by his subcontractors. In these actions the waterworks and irrigation company was made a party, and the result of the trial was, the estimates of the company's engineer were rejected, and the...