Gray v. New Mexico Pumic Stone Co. (State Report Title: Gray v. New Mexico Pumice Stone Co.)
| Decision Date | 16 August 1910 |
| Citation | 110 P. 603,15 N.M. 478,1910 -NMSC- 036 |
| Parties | GRAY v. NEW MEXICO PUMIC STONE CO. et al. |
| Court | New Mexico Supreme Court |
Appeal from District Court, Bernalillo County; before Justice Ira A Abbott.
Action by Aaron Gray against the New Mexico Pumic Stone Company and others. From a judgment for plaintiff, defendant M. W Flournoy appeals. Affirmed.
Herbert F. Raynolds, for appellant.
Felix H. Lester, for appellee.
PARKER J. (after stating the facts as above).
1. Objection is made to the claim of lien on the ground that it fails to state the terms, time given, and condition of the contract under which the labor was performed, as is required by section 2221 of the Compiled Laws of 1897, which is as follows: "Every original contractor, within ninety days after the completion of his contract, and every person, save the original contractor, claiming the benefit of the act must within sixty days after the completion of any building, improvement, or structure, or after the completion of the alteration or repair thereof, or the performance of any labor in a mining claim, file for record with the county recorder of the county in which such property or some part thereof is situated, a claim containing a statement of his demands, after deducting all just credit and offset, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed, or to whom he furnished the materials, with a statement of the terms, time given and conditions of his contract, and also a description of the property to be charged with the lien, sufficient for identification, which claim must be verified by the oath of himself or of some other person." The terms of the claim of lien are as follows: "Claimant agreed to and with the New Mexico Pumic Stone & Lithograph Company to work for said company for the sum of $3 per day and board." This is certainly a very meager statement, but can it be said that it is so insufficient as to invalidate the lien? If the terms and conditions of the contract, as stated, were the only terms and conditions agreed upon, none others could be stated. If no time was given, then no statement could be made on the subject. There is nothing in this record to show that there were in fact any other terms or conditions in the contract of employment than those expressed. Under such circumstances, the claim of lien is clearly not open to attack by demurrer. We therefore hold that the claim of lien is sufficient on its face in this particular.
2. The lien claim is challenged on the ground that it fails to show the character of labor for which it is asserted. This requirement in so far as it exists arises out of the provision of the statute heretofore quoted, to the effect that the claim of lien shall contain "a statement of his demands." In some jurisdictions, as for instance in Washington, this provision has been quite strictly construed, and it is there held that it must appear what the labor or materials were for which the claim is asserted. See Warren v. Quade, 3 Wash. St. 750, 29 P. 827. In other jurisdictions it is held, more properly as we believe, that a statement of the general nature of the materials furnished, or labor performed, together with the amount claimed to be due therefor, after deducting all just credits and offsets, is all that is required. Jewell v. McKay, 82 Cal. 150, 23 P. 139; McClain v. Hutton, 131 Cal. 133, 61 P. 273, 63 P. 182, 622; Maynard v. Ivey, 21 Nev. 241, 29 P. 1090. In the case under consideration the specific character of the labor performed by the lien claimant is not stated further than to say that it was labor performed in the construction of the mining claim on the land. This seems to be sufficiently definite and may include many different kinds of labor, for all of which a claimant would be entitled to a lien.
3. Objection is made to the claim of lien upon the ground that it was not filed for record in time. The objection is based upon the proposition that the lien claimant is not an original contractor within the meaning of the section above quoted. There has been much diversity of opinion and confusion as to the meaning of these words in a statute like ours, but we think that the Idaho court, under a statute identical in terms with ours, has announced the true rule, namely, that every person who deals directly with the owner of the property and who, in pursuance of a contract with him, performs labor or furnishes material, is an original contractor within the meaning of the statute. Colorado Iron Works v. Riekenberg, 4 Idaho, 262, 38 P. 651. The same holding prevails in Texas, Missouri, Virginia, and Wisconsin, and the cases from those states are cited in the Idaho opinion. We therefore hold that the claim of lien in this case was filed in time.
4. It is urged by appellee that the objections to the claim of lien heretofore discussed are not available to the appellant for the reason that his demurrer, being general, and, the complaint stating a cause of action against the owner of the property for money due, the demurrer was, at any event, properly overruled, and consequently these objections to the claim of lien were never properly presented to the court below. In this he is in error. This was a separate demurrer by a subsequent incumbrancer. Had the demurrer been joint with the owner, perhaps his proposition would be sound, but, being a separate demurrer, it directly raises the question whether the complaint and claim of lien stated facts sufficient to constitute a cause of action against the defendant demurring. Mark Paine Lumber Co. v. Douglas Imp. Co., 94 Wis. 322, 68 N.W. 1013.
5. Appellant in his sixth assignment complains of the allowance by the court below of an attorney's fee to the appellee and urges upon the court a reconsideration of the constitutionality of the lien statute under which the same was allowed. We do not, however, deem it...
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