Heim v. Elliott

• Decision Date: 26 December 1911
• Citation: Heim v. Elliott, 66 Wash. 361, 119 P. 826 (Wash. 1911)
• Court: Washington Supreme Court
• Parties: HEIM et al. v. ELLIOTT et al.

119 P. 826

66 Wash. 361

HEIM et al. v. ELLIOTT et al.

Supreme Court of Washington

December 26, 1911

Department 1. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Suit by W. M. Heim and another against J. S. Elliott and wife and certain others, to enforce mechanics' liens. From a judgment in favor of the lienors, Elliott and wife appeal. Reversed, with directions.

William A. Greene and James B. Murphy, for appellants.

Reynolds Ballinger & Hutson, Peterson & Macbride, and S. A. Keenan for respondents.

GOSE J.

The appellants, as the owners of two lots in the city of Seattle on September 3, 1909, entered into a contract with the respondent Martin, hereafter called the contractor, whereby the latter agreed to furnish all the labor and material and erect a dwelling house on the lots for a stipulated price. The respondent Wilkinson thereafter, in pursuance of an agreement with the contractor, furnished the material for and installed and finished the hardwood floors. The contract price therefor was $194. Thereafter, at the contractor's request, Wilkinson did extra work of the value of $15.50. No payments were made upon this contract. The respondent Heim, in pursuance of an agreement with the contractor, furnished the material and labor for and installed the plumbing and the heating plant. The contract price was $2,050. The alleged balance is $666.98. At the conclusion of the trial, a judgment was entered against the contractor in favor of the respondent Wilkinson for $209.50, and in favor of the respondent Heim for $472.98, and making these amounts a lien against the appellants' property. The facts applicable to the other respondents will be stated in discussing the liens decreed in their behalf. The owners of the property have appealed.

The respondents Wilkinson and Heim contend that they are subcontractors, and that they were not required to deliver or mail to the owner a duplicate statement of the material which they furnished. This contention is not tenable. Our statute (Rem. & Bal. Code, § 1133) provides that 'every person' furnishing material to be used in the construction of a building 'shall at the time' the material is delivered deliver or mail to the owner of the property upon which the material is to be used a duplicate statement of all material delivered, etc. It seems clear, therefore, that the respondents, having failed to deliver the duplicate statements, cannot be allowed a lien for the material which they furnished. Finlay v. Tagholm, 62 Wash. 341, 113 P. 1083.

The respondent Wilkinson testified that the labor performed in completing his contract was of the value of $117.61, and the respondent Heim testified that the same item in his contract was of the value of $546.20. The respondents contend that these items are lienable. The appellants, assert that they are not lienable, because the contract of each of the respondents with the general contractor was entire. They had no contract with the appellants. Hence there was no privity of contract between them. Hunnicutt & B. Co. v. Van Hoose, 111 Ga. 518, 36 S.E. 669. Rem. & Bal. Code, § 1129, entitles these respondents to a lien for their labor, and we do not think that this right is defeated because the contract with the general contractor was indivisible. Such a determination would not be in harmony with the rule of liberal construction enjoined by the provisions of Rem. & Bal. Code, § 1147. The lien of the respondent Wilkinson will be reduced to $117.61, and the lien of the respondent Heim will not be disturbed. The court made a deduction of $194 from his claim on account of defective workmanship.

The respondent Ballard Lumber Company was given a lien upon the property for $467.23. In September, 1909, it contracted with Martin, the general contractor, to furnish material to be used in the erection of the dwelling. It commenced delivering the material in pursuance of its contract on September 14, 1909, and continued until March 31 1910. The deliveries were continued from day to day. On the date of the first delivery, it mailed to the appellants a duplicate statement of all the material covered by its contract. No other duplicate statement was mailed to the appellants, and none was delivered to them. This lien should not have been allowed. The duplicate statement was not mailed 'at the time' such material was delivered. This respondent invokes the rule of liberal interpretation. To enforce this lien would be legislation, rather than interpretation. Six and one-half months elapsed between the first and the last deliveries. The statute was not substantially complied...