Gilbert Hunt Co. v. Parry

• Decision Date: 23 August 1910
• Parties: GILBERT HUNT CO. v. PARRY.
• Court: Washington Supreme Court

110 P. 541

59 Wash. 646

GILBERT HUNT CO. v. PARRY.

Supreme Court of Washington

August 23, 1910

Department 2. Appeal from Superior Court, Walla Walla County; Thomas H Brents, Judge.

Suit to foreclose a lien by the Gilbert Hunt Company against Will H Parry, receiver of the Pasco Power & Water Company. Judgment for plaintiff, and defendant appeals. Reversed.

Bausman & Kelleher, for appellant.

Samuel R. Stern, for respondent.

PARKER J.

This is an action to foreclose a lien claimed by the plaintiff upon the buildings, structures, ditches, etc., constituting the power and irrigation plant of the Pasco Power & Water Company, and also upon several thousand acres of land of that company proposed to be irrigated by the plant. A trial before the court resulted in a judgment of foreclosure and an order for the sale of the property to satisfy the plaintiff's claim. The defendant has appealed.

The Pasco Power & Water Company is a domestic corporation engaged in a general scheme and enterprise in the county of Walla Walla along the Snake river, having for its purpose the irrigation of several thousand acres of land, and the building of irrigation ditches and pumping plants, all as a part of one general scheme for the improvement of its land. Between February 5 and November 9, 1907, the appellant furnished to the Pasco Power & Water Company a large number of articles, expended money in paying freight and cartage thereon to the place of delivery, and performed other services in connection with the furnishing and delivery of the articles, all of which we will assume entered into the cost thereof. These articles aggregate in value the sum of $5,428.45, upon which there was paid from time to time without any direction as to how such payment should be applied, sums aggregating $1,633.50, and upon which there were given certain other credits because of overcharges and errors, aggregating $265.40; leaving a balance due of $3,529.55 for which amount the foreclosure judgment was entered with interest. These articles were all furnished and accepted for the purpose of being used by the Pasco Power &amp Water Company in connection with the construction of the buildings, structures, ditches, etc., upon its land. A careful reading of all the evidence convinces us, however that these articles were not furnished with the understanding or intent that all of them were to be used in the construction of the structures and ditches upon the land of the Pasco Power & Water Company, in the sense that they were all to enter into and become a part of such structures or ditches when completed; but that they were furnished with the understanding that they were to be used in connection with such construction, at least for the most part, only as tools and appliances to carry on such construction. The list of items so furnished, with the charge for each, shown by an exhibit in the record, admitted to be correct, covers many typewritten pages. There are, among others, such items as horse shoe nails, hammers, straps for steam shovel, blacksmith's coal, dump car trucks, rental for engine, curry combs, horse brushes, slides for donkey engine, truck axles, tar, draw heads and springs therefor, car wheels, lathe work on axles, blacksmith's work on axles, drills, putting on car wheels, brass part for steam shovel, Cylinder oil, saw blades, saw set, tongs, wrenches, cup grease, files, powered emery and emery cloth, boxes for dump cars, packing, oil can, brake shoes, and freight charges on such articles. A large number of these items are repeated many times. It is quite plain from the record that these items, to which others might be added by closely scrutinizing the list, were not furnished to be used in, and were not used in, the buildings, structures, or ditches; but were furnished to be used and were used as tools and appliances or as repairs thereto, with which the work of constructing the plant was carried on. It is not at all difficult to go through this list of articles furnished and services rendered, and pick out a sufficient quantity of them of the nature above enumerated, which were clearly not intended to, and did not, become a part of the finished structure; to amount in the aggregate to more than half of the entire amount furnished. Of the other items furnished, by far the greater amount of them are of such nature, that so far as can be determined from the evidence in this case they might be put into the class we have just mentioned, or might be classed as material going into the structures. It is quite impossible to determine from the evidence with any degree of certainty, what quantity of the items furnished belong to one class and what to the other, though it may be possible to determine that a small portion of them did actually go into the structures. We believe the foregoing statement is as favorable to the respondent's contention upon the questions of lienable...