Hallett v. Phillips

• Decision Date: 07 May 1913
• Citation: Hallett v. Phillips, 73 Wash. 457, 132 P. 51 (Wash. 1913)
• Parties: HALLETT et al. v. PHILLIPS et ux.
• Court: Washington Supreme Court

132 P. 51

73 Wash. 457

HALLETT et al. v. PHILLIPS et ux.

Supreme Court of Washington, En Banc.

May 7, 1913

Appeal from Superior Court, King County; John S. Jurey, Judge.

Action by Fred N. Hallett and others against H. J. Phillips and others. From a judgment for plaintiffs and interveners defendants Phillips and wife appeal. Reversed in part, and affirmed in part.

Kerr &amp McCord, of Seattle, for appellants.

John P Hartman, John E. Ryan, Grover E. Desmond, Josiah Thomas, D. R. Hoppe, S. A. Keenan, Walter L. Johnston, and Kenneth Mackintosh, all of Seattle, for respondents.

CROW C.J.

Three separate actions consolidated prior to trial were instituted in the superior court of King county against H. J. Phillips, Mary Pickering Phillips, his wife, and others, to foreclose liens for labor and material on real estate owned by Phillips and wife. Cross-complaints were filed by certain defendants, and complaints in intervention were filed by certain interveners to foreclose separate liens asserted by them. Upon findings made a final decree was entered, foreclosing separate liens in favor of Fred N. Hallett, Frank J. Seidelhuber, Brace & Hergert Mill Company, a corporation, Union Hardware Company, a corporation, and A. J. Finlay and J. N. Robb, copartners as Finlay & Robb. In the same decree a personal judgment was entered in favor of Globe Wall Paper Company, a corporation, against H. J. Phillips and wife, for leatherette sold. From this decree Phillips and wife have appealed.

On February 14, 1910, H. J. Phillips and wife, as owners of a lot in the city of Seattle, entered into a written contract with the defendant, O. E. Olson, for the erection of an apartment house thereon. The contract provided that Olson was to furnish all labor and material, and was to be paid $29,407 as the contract price. The various claimants herein allege that they furnished material or labor, or material and labor, to Olson, which were used in the construction of the building, and claim that they perfected liens for the respective amounts due them. Relative to the claim of Frank J. Seidelhuber, one of the original plaintiffs, the trial court found that on or about April 25, 1910, the contractor, Olson, entered into an oral agreement with him whereby Seidelhuber agreed to furnish material and perform work in the construction of stair railings, two pipe railings, and a fire escape ladder in and upon the building, for the agreed price of $163; that, in pursuance thereof, Seidelhuber performed the work and constructed in the building the stair railings, pipe railings, and fire escape ladder as agreed; that no part of the contract price therefor has been paid; that he ceased to perform labor and furnish material on July 30, 1910, and thereafter mailed a duplicate statement of his claim to H. J. Phillips and wife, in care of their agents, and that within 90 days after the completion of his contract he perfected and filed his notice of lien. A foreclosure decree was entered in his favor for $163, with interest, attorney's fees, and costs. Relative to the claim of Finlay & Robb, interveners, the trial court found: That on or about April 28, 1910, they entered into a contract with Olson, in the form of an accepted written bid, as follows: 'O. E. Olson, City--Dear Sir: For the sum of eleven hundred and sixty-seven ($1167.00) dollars, we agree to do the sheet metal work and roofing on the building under course of construction on Terry Avenue near Pine Street. This work includes: Four ply tar and gravel roof, all the galvanized iron cornices, galvanized capitals on pilasters, all fire proof doors and windows as specified, gas vents, skylight, window flashings, base flashing, balcony roof and flashing, three inch bed vents for the entire building. Should you desire the eight galvanized vents from outside to light shaft they would cost you an additional sixty-four ($64.00) dollars. Trusting this figure may be favorable and we may be awarded the contract, we are, Yours truly, Finlay & Robb, per J. N. R. I hereby accept above bid for metal work only. [Signed] O. E. Olson.' That the contract price was $940. That on or about May 2, 1910, the interveners furnished material and performed the work. That they performed extra labor and furnished extra material at the request of Olson of the value of $128.25. That they completed their contract on August 23, 1910. That on November 9, 1910, they perfected and filed their notice of lien, and that after crediting all payments made there still remained due them $1,000.10, for which sum a decree of foreclosure was entered, with interest, attorney's fees, and costs.

The evidence shows that the claimant, Frank J. Seidelhuber, did not mail to the owner of the building, or his agent, any duplicate statements of materials furnished by him until he had completed his contract, and there is no evidence showing that any duplicate statements for materials furnished by Finlay & Robb were delivered or mailed to the owners or their agents, at any time.

The question presented on the appeal from the decree of foreclosure on these claims is whether being subcontractors who furnished material as well as labor, the respondents Seidelhuber and Finlay & Robb under section 1133, Rem. & Bal. Code, were required to mail duplicate statements of the material furnished by them. They contended, and the trial court must have held, that, being subcontractors, they were not materialmen, and were not required to deliver or mail any statements. In support of this position, respondents cite Architectural Decorating Co. v. Nicklason, 66 Wash 198, 119 P. 177, decided by Department 2 of this court on December 8, 1911; while appellants in support of a contrary contention, that the mailing of duplicate statements was necessary to sustain the liens, cite Heim v. Elliott, 66 Wash. 361, 119 P. 826, decided by Department 1 of this court on December 26, 1911. A casual reading of the cases cited might suggest that they lack in harmony, and are conflicting, yet we are satisfied that a correct judgment was rendered in each case. The statute provides: 'Every person furnishing material or supplies to be used in the construction, alteration or repair of any mining claim, building, wharf, steamer, vessel, boat, bridge, ditch, dyke, flume, tunnel, well, fence, machinery, railroad, street railway, wagon road, aqueduct to create hydraulic power, or any other structure or mining claim or stone quarry, shall, at the time such material or supplies are delivered to any person or contractor, deliver or mail to the owner, or reputed owner, of the property, on, upon or about which said materials or supplies are to be used, a duplicate statement of all such materials or supplies delivered to any contractor or person to whom any such materials or supplies have been sold or delivered, and no materialman's lien shall be filed or enforced unless the provisions of this act have been complied with.' This statute is intended to provide a method of protection for owners of buildings as against claims for materials which may have been purchased by contractors from third parties without the owners' knowledge; there being no privity of contract between the owners and such third parties. To afford this protection, the statute, as a condition precedent to the right to claim a lien, requires that 'every person' furnishing material shall deliver or mail the duplicate statements. In this case, the contract with Olson provides that payments shall be made to him by appellants on each alternate Saturday upon the architect's estimate, and that the amount of payments shall be 80 per cent. of the labor...