Gray v. Hickey

• Decision Date: 26 January 1917
• Docket Number: 13522.
• Parties: GRAY v. HICKEY et al.
• Court: Washington Supreme Court

162 P. 564

94 Wash. 370

GRAY v. HICKEY et al.

No. 13522.

Supreme Court of Washington

January 26, 1917

Department 2. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.

Action by John T. Gray against Kate L. Hickey, as executrix of the estate of M. J. Hickey, and others, to foreclose a mechanic's lien. Judgment for the plaintiff and the other lien claimants, and the defendant executrix appeals. Affirmed in part, reversed in part, and remanded, with directions.

Guy E. Kelly and Thomas MacMahon, both of Tacoma for appellant.

W. H Pratt, Chas. Bedford, Hoppe & Hoppe, and H. G. Fitch, all of Tacoma, for respondents.

PARKER J.

This action was commenced by the plaintiff, John T. Gray, in the superior court for Pierce county to recover a balance alleged to be due him from the defendant Kate L. Hickey, as executrix of the estate of M. J. Hickey, deceased, for cutting cordwood under a contract entered into by the plaintiff with M. J. Hickey during his lifetime. The plaintiff also sought foreclosure of a lien claimed by him upon the wood and sale of the wood thereunder in satisfaction of the whole amount claimed by him. Dan Evans, Ernest Baker, Albert Pitts, and R. F. Henry were made defendants because they had been employed by Gray to assist in cutting the wood and had filed liens upon the wood for the amounts claimed by them respectively. The trial resulted in findings and decree awarding foreclosure of liens to Evans for $41.50, to Baker for $41.50, to Pitts for $33.15, to Henry for $22.95, and to Gray for $28.20. The court also awarded personal judgment in favor of Gray against the defendant Kate L. Hickey, as executrix, for $118.50, being the balance found due Gray under his contract after deducting the amounts due upon the lien claims of himself and the cross-complainants Evans, Baker, Pitts, and Henry. From this disposition of the cause the defendant Kate L. Hickey as executrix, has appealed to this court.

On March 1, 1915, respondent Gray and M. J. Hickey entered into a written contract whereby Gray was to cut into cordwood the timber upon a certain 40-acre tract of land belonging to Hickey in Pierce county and pile the wood after being cut upon the land. Gray was to receive therefor $1 per cord for the cutting and piling of the wood. On the 5th day of each month payment was to be made to Gray for all wood cut and piled during the month next preceding. Very soon after the entering into this contract M. J. Hickey died, and soon thereafter his wife, appellant, Kate L. Hickey, became executrix of his estate. Gray commenced work under the contract about the time of the death of M. J. Hickey soon after the time of the making of the contract. Payments were made to Gray by Mrs. Hickey, as executrix, acting through her son, at the end of each monthly period, in accordance with the contract, up to and including the month of June, 1915; the last payment being made July 2d. During the months of July, August, and September Gray proceeded with the work, employing Evans, Baker, Pitts, and Henry to assist him, agreeing to pay them therefor so much per cord according as their work would be for sawing or splitting or both, but amounting to slightly less than the $1 per cord for the finished product which Gray himself was to receive under the terms of the contract. Gray, not being paid for the work done by him and his employés after June, on October 28, 1915, filed in the office of the county auditor of Pierce county his notice of lien upon the wood for the whole balance due him under the terms of the contract. Evans, Baker, Pitts, and Henry, not being paid for the work done by them, filed in the office of the auditor of Pierce county their notice of liens upon the wood on August 12th, August 18th, October 28th, and November 1st, for the amount due each of them respectively. All of those claims of lien were made under section 1162 et seq., Rem. Code 1915. Before the commencement of this action Gray caused to be presented to Mrs. Hickey, as executrix of the estate his duly verified claim for the whole balance due him under the terms of the contract in form as required by the statute relating to presentation of claims against estates of deceased persons. This claim, as asserted by Gray, included all sums due from him to Evans, Baker, Pitts, and Henry. He has conceded at all times that they are entitled to be paid out of whatever was due him upon the contract, in effect conceding in this action that judgment be rendered in their favor upon their claims and to be deducted from the judgment to be rendered in his favor, and claiming in effect that his presentation of his claim to Mrs. Hickey as executrix was as much for their benefit as for himself. The personal judgment for $118.50 awarded Gray against Mrs. Hickey as executrix is the balance found due to him under the contract after deducting the amounts due to Evans, Baker, Pitts, and Henry and the amount of $28.20 awarded to Gray as a lien claim. This limiting of Gray's lien claim to $28.20 was done by the court, evidently on the theory that, while more was due him under the contract that was all due him for his own personal labor upon the wood, and hence all he was entitled to claim a lien for. He has not appealed from the judgment, and hence we have no occasion to inquire whether the court erred to his prejudice in so limiting his lien claim. Neither Evans, Baker, Pitts, nor Henry ever filed any claim with Mrs. Hickey as executrix.

It is contended in appellant's behalf that the evidence fails to show the filing of any claim by Gray with Mrs. Hickey as executrix, and that therefore he is precluded from maintaining any action against her as executrix either as a lien claimant or otherwise, because of the requirements of our statute relative to presentation of claims against the estates of deceased persons, and especially section 1479, Rem. Code 1915, providing that:

'No holder of any claim against an estate shall maintain an action thereon, unless the claim shall have been first presented to the executor or administrator.'

This contention involves only a question of fact. We are quite convinced from a reading of the evidence that the claim was properly prepared and verified by Gray, caused to be mailed to Mrs. Hickey as executrix, and was received by her. We think this contention does not call for further notice. We conclude that Gray's right of action is not impaired for want of proper presentation of his claim to Mrs. Hickey as executrix.

It is contended that Gray waived his right to a lien for all sums to become due him under the contract by the provision therein reading as follows:

'The party of the second part [Gray] agrees to do all of said work in a workmanlike manner and pay all bills for labor, groceries, and all other expenses of carrying on said work and prevent any liens being filed against the said wood on account thereof.'

We do not construe this provision of the contract as a waiver of Gray's lien right for the work to be performed by him....