Hayutin v. Gibbons

• Decision Date: 20 April 1959
• Docket Number: No. 18065,18065
• Citation: 139 Colo. 262,338 P.2d 1032
• Parties: Irving HAYUTIN and Arthur Hayutin, Plaintiffs in Error, v. Leonard GIBBONS and Marvin Mandel, doing business as Kalamath Builders Supply Company, Defendants in Error.
• Court: Colorado Supreme Court

Page 1032

338 P.2d 1032

139 Colo. 262

Irving HAYUTIN and Arthur Hayutin, Plaintiffs in Error, v. Leonard GIBBONS and Marvin Mandel, doing business as

Kalamath Builders Supply Company, Defendants in Error.

No. 18065.

Supreme Court of Colorado, En Banc.

April 20, 1959.

Rehearing Denied June 1, 1959.

Hayutin & Hayutin, Denver, for plaintiffs in error.

Cranston & Arthur, Denver, for defendants in error.

FRANTZ, Justice.

Leonard Gibbons and Marvin Mandel owned and operated a business in Denver known as Kalamath Builders Supply Company. Irving Hayutin and his wife, Sima, owned an unimproved residential site at 4800 East Orchard Avenue in Arapahoe County, and engaged H. W. Johnson, a contractor, to build a home on the property. Arthur Hayutin is Irving's brother, and together they practise their profession of law in Denver.

Kalamath Builders Supply Company (designated hereinafter the 'Company') sued to recover the value of certain merchandise and materials, said to have been delivered to 4800 East Orchard Avenue upon the order of Arthur, acting as the agent of Irving. It is alleged that the wares thus ordered and delivered were worth $600.66, and that Irving, notwithstanding demands for payment, refuses to satisfy the indebtedness accordingly incurred. The complaint concludes with a demand against Irving for $600.66, and in the alternative against Arthur, should the court find that the latter was not the agent of Irving in ordering the materials.

These allegations are denied in Hayutins' answer. In their second defense they aver that Irving and Sima entered into a construction contract with H. W. Johnson; that the contract was filed in Arapahoe County in compliance with C.R.S. '53, 86-3-1, and that payments were made on the contract as required by C.R.S. '53, 86-3-2. Arthur's agency was put in issue in this defense. Finally, the Hayutins relied upon the Statute of Frauds as an exoneration from any obligation.

At a pretrial conference the parties agreed that the materials were delivered to 4800 East Orchard Avenue in Littleton, Colorado, then owned by Irving and Sima; that the reasonable value of the materials was $600.66; and that a copy of the contract between Irving and Sima and H. W. Johnson was filed in the office of the Clerk and Recorder of Arapahoe County, and that it 'could be introduced by Defendants as an exhibit.'

Upon trial Irving proved that he filed the written contract in accordance with C.R.S. '53, 86-3-1, and that he attempted to make payments under the contract in strict compliance with C.R.S. '53, 86-3-2. He had tendered to the Company its pro rata share of balance due, to wit: $245.27, together with Johnson's note in the sum of $600.66, upon which would be credited said tendered sum in the event of its acceptance. This was done within the thirty-five day period after final completion of the construction contract.

From the evidence it appeared that materials were ordered and delivered on four different occasions between June 3 and July 9, 1953. Not having been paid, Gibbons on behalf of the Company made demand on Irving for payment. In connection with the demand for payment, Gibbons testified that he had a conversation with Irving shortly after the first of August, at which time Irving promised that payment would be made by August 10th. Gibbons again talked to Irving on September 15th about payment of the account, and Irving assured him that it would be paid by September 18th. This testimony is contradicted by Irving and inferences may be drawn from other evidence which would be inconsistent with this testimony.

Without indicating the basis of its decision, the trial court entered judgment against Irving and Arthur jointly and severally in the sum of $600.66. They seek to have this adverse judgment reversed.

Three grounds for reversal are presented in their brief. Our resolution of the first ground makes unnecessary consideration of the other grounds. The first ground is as follows:

'The General Mechanics Lien Law was designed to protect both the mechanic and the owner. It furnishes an additional remedy to the mechanic, and if the owner complies with the recording provisions, limits the liability of the owner to an amount not in excess of price stipulated in the contract.'

So much of C.R.S. '53, 86-3-1, is quoted as needs considerations:

'* * * material men, contractors, subcontractors, builders, and all persons of every class * * * furnishing materials to be used in the construction, * * * either in whole or in part, of any building * * * shall have a lien upon the property * * * for which they have furnished materials * * * for the value of such * * * material furnished, whether at the instance of the owner, or of any other person acting by his authority or under him, as agent, contractor, or otherwise, for the * * * materials furnished, * * * whether * * * furnished * * * at the instance of the owner of the building * * * or his agent; and every contractor, * * * builder, agent or other person having charge of the construction * * * of any building * * * shall be held to be the agent of the owner for the purposes of this article.

'In case of a contract for the work, between the reputed owner and a contractor, the lien shall extent to the entire contract price, and such contract shall operate as a lien in favor of all persons * * * furnishing materials under...