Gaston v. Avansino

• Decision Date: 31 December 1915
• Docket Number: 2182.
• Citation: 154 P. 85,39 Nev. 128
• Parties: GASTON v. AVANSINO ET AL.
• Court: Nevada Supreme Court

154 P. 85

39 Nev. 128

GASTON v. AVANSINO ET AL.

No. 2182.

Supreme Court of Nevada

December 31, 1915

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

Action by J. E. Gaston against Mary Avansino, as administratrix of the estate of Louis Avansino, deceased, and others. From the judgment and order denying a motion for new trial, defendants appeal. Affirmed.

Mack & Green, of Reno, for appellants.

Dixon & Miller, of Reno, for respondent.

McCARRAN J.

This was an action in foreclosure of a mechanic's lien. In the court below judgment was rendered in favor of the lienholder respondent herein. From the judgment and from an order denying a motion for a new trial, appeal is taken to this court. The labor was performed and the material furnished by respondent at the instance and request of the lessee of the premises of Louis Avansino, deceased. It is admitted that the work was done and the material furnished in bringing about certain alterations and changes in the premises, and was within the knowledge and with the consent of Louis Avansino. Louis Avansino having died since the judgment was rendered in the lower court, Mary Avansino, administratrix of the estate of Louis Avansino, was substituted as party defendant and appellant herein.

It is the contention of appellant that the court erred in finding the fact that the defendant, appellant herein, did not give notice by posting in writing on the premises in some conspicious place, stating that he, the defendant, would not be responsible for any material furnished or labor done in the alteration and repair of the building.

Section 2221 of the Revised Laws, 1912, provides:

"Every building or other improvement mentioned in section 1 of this act, constructed upon any lands with the knowledge of the owner or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this chapter, unless such owner or person having or claiming an interest therein shall, within three days after he shall have obtained knowledge of the construction, alteration or repair, or the intended construction, alteration or repair, give notice that he will not be responsible for the same, by posting a notice in writing to that effect in some conspicuous place upon said land, or upon the building or other improvement situate thereon."

It was the contention of appellant in the court below that due and sufficient notice was given, by posting in a conspicious place in the building a certain notice testified to by Louis Avansino, Jr. Louis Avansino, Jr., testified that about the 10th or 11th day of November, 1912, he wrote out a notice signed it with his father's name, and posted the same in a conspicuous place in the building.

The testimony of the witness Kirby Unsworth is to the effect that on one occasion he saw the witness Louis Avansino, Jr., with a paper in his hand; that on the paper was what he would term a rough notice in handwriting; that he saw Louis Avansino, Jr., go into Kane's Café, the premises in question, carrying this paper. The witness Unsworth, in attempting to fix the time at which his attention was drawn to the notice in the hand of Louis Avansino, Jr., said:

"Q. Can you recall to mind whether or not you accompanied the son from any place to that building for any purpose some time back? A. Last fall, during the noon hour, I met one of the boys, Louis, near Conant's grocery store as I was going out of Conant's, and accompanied him down as far as Kane's Café."

The trial of this case took place in June, 1914; and, if the witness' testimony in this respect was correct, the time at which he saw the notice in the hands of Avansino was nearly a year subsequent to the commencement of the work.

The witness Louis Avansino, defendant in the court below, as well as the witness Maggilo, testified to having seen the notice posted on a swinging door, a conspicuous place in the premises.

It is the contention of appellant that this testimony was not contradicted, except by witnesses who testified that they did not see the notice; in other words, they contend that no positive testimony was given denying the notice. We think the view of appellant in this respect is untenable, inasmuch as the record discloses the following testimony elicited from the respondent, Gaston, a witness in his own behalf:

"Q. Now, Mr. Gaston, at the time you entered into this oral contract with Kane, Incorporated, for alteration repairs to which you have testified, was there any notice posted upon those premises anywhere to the effect that Mr. Avansino, the owner of the building, would not be responsible for work done thereon? A. No, sir; there was not. Q. Was there any such notice posted upon those premises at the time you commenced work on the 11th of November, 1912? A. No, sir. Q. Was there any such notice posted there at any time during the month of November, 1912? A. No, sir. Q. Was there any such notice posted upon those premises during the month of December, 1912? A. No, sir. Q. Was there any such notice posted upon those premises at any time during the month of January, 1913? A. No, sir. Q. Was there any such notice posted upon those premises anywhere during the month of February, 1913? A. No, sir. Q. Was there any such notice posted anywhere upon those premises during the month of March, 1913? A. No, sir. Q. Was there any such notice posted upon those premises anywhere during the month of April, 1913? A. No, sir."

The witness McDermott testified to having worked in the building as a plumber during the month of March, 1913; that he made some search for notice, and saw none at that time.

The witness Harry Kelly testified that he worked in the building during the month of November, 1912, and also in January, 1913; that he saw no notice.

The witness C. W. Farrington testified that he worked in the building as a carpenter during the month of November, 1912, and as late as May 23, 1913, and that he saw no notice.

The witness E. J. Brennan testified that he worked in the building during the months of November and December, 1912; that his work and employment took him all over the building; and that he saw no notice posted.

The witness Johnson testified that he worked in the building for several days during the month of November, 1912, and saw no notice.

The witness Otto Koehler testified that during the month of December, 1912, he worked in the building as a paper hanger and painter, and saw no notice.

The testimony of several other witnesses was to the same effect.

Whatever might be said as to the negative nature of the testimony of the witnesses called in behalf of respondent in the court below, the testimony of the respondent himself was positive upon the question that no notice was posted. On this question, then, there was a substantial conflict of testimony; and, there being positive and substantial evidence produced by the respondent himself upon which the finding of the court on the question of fact as to the posting of the notice can be supported, the rule universally adopted by this court, and by nearly all other courts of last resort, is applicable here, and the finding will not be disturbed. Tonopah Lumber Co. v. Nevada Amusement Co., 30 Nev. 445, 97 Pac. 636; Turley v. Thomas, 31 Nev. 181, 101 P. 568, 135 Am. St. Rep. 667.

It is the contention of appellant that the trial court erred in finding that the lien was filed within the time required by law. They contend here, as they contended in the court below, that the work was completed in February, 1913, and that services performed thereafter by respondent were no part of the original contract, but were separate contracts for which separate liens should have been filed, and that the lien notice filed by respondent on August 9, 1913, was not filed within the statutory time. Indeed, from a standpoint of the evidence produced, as well as from a standpoint of the law applicable, this is the closest question presented in the case.

It was the contention of respondent in the court below, and testified to, that on the 9th day of November, 1912, he entered into an oral contract with the lessee of the building, to wit, Kane, Incorporated, to furnish labor and material for the alteration, changing, and repair of the building for the convenience of Kane, Incorporated. The terms of the agreement, according to the testimony of respondent, were that respondent was to do the work and furnish the labor and material, and that Kane, Incorporated, was to pay respondent at the rate of $6 per day for his labor, $5 a day for carpenters whom he employed, $2.50 a day for carpenter helpers, $4 a day for brick mason helpers, and $7 a day for brick masons. The testimony of respondent, Gaston, in this respect is as follows:

"Q. You say-- What was the alteration? Describe that work to be done under that agreement. A. Well, at that time the work that was outlined was rebuilding the dining room, to take out the old kitchen out of the dining room, and take the stairs out of the front and put them in again in the rear, or better than one-third or halfway in the building--they were running the upstairs there--put in a hall from Virginia street to the dining room, and put in the toilets and other conveniences, and put in lunch counters, and put in a front on the building and other alterations, both upstairs and downstairs, and the cellar. Q. And also to supply the materials of that work, were you? A. Yes, sir. Q. And all labor? A. Yes, sir; that is, the carpenters' labor only. Q. The carpenter labor? A. Yes, sir; and the common labor, of

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