Helena Steam-Heating & Supply Co. v. Wells
| Decision Date | 15 April 1895 |
| Citation | 40 P. 78,16 Mont. 65 |
| Parties | HELENA STEAM-HEATING & SUPPLY CO. v. WELLS et al. |
| Court | Montana Supreme Court |
Appeal from district court, Lewis and Clarke county; William H Hunt, Judge.
Action by the Helena Steam-Heating & Supply Company against Laura J Wells and another. From a judgment for plaintiff, defendants appeal. Affirmed.
McConnell Clayberg & Gum and O. W. McConnell, for appellants.
Walsh & Newman, for respondent.
PEMBERTON C.J. (after stating the facts).
The evidence upon which the findings were made is not before this court. There is no contention that the evidence did not warrant the findings. The appellants contend that, under the findings of the jury, the court erred in rendering judgment for the plaintiff in the sum of $582.77, and for $100 attorney's fee, with costs of suit. It is contended by appellants that only one item of the materials for which a lien is claimed, amounting to 24 cents, was sold and delivered by plaintiff within 45 days before the filing of the notice of lien, and that all the other materials in suit were sold and delivered under separate orders or contracts, and were all delivered more than 45 days before filing the lien, and that such several orders did not constitute one continuing contract. The appellants contend that the findings of the jury numbered 2, 5, 7, and 8 establish the claim that the materials were furnished under separate orders or contracts. We think finding No. 2, while it is to the effect that O'Brien might furnish the materials himself, or procure them elsewhere than of plaintiff, does not in any wise tend to show that what materials he did procure from plaintiff were not furnished under a continuing contract or understanding. Finding No. 5 is to the effect that each day's orders for material were due on delivery. We think that this merely means that there was no specific agreement for time. This does not preclude the presumption that time or credit was understood to be intended by the parties from the nature of the contract, and the custom of dealing between the parties. Finding No. 7 is to the effect that there was no specific agreement between O'Brien and plaintiff as to the amount of material to be furnished. This finding in no way removes or tends to remove the presumption that whatever was furnished, regardless of amount, should be considered as delivered under a continuing contract or agreement. Finding No. 8 is to the effect that there was an understanding from the commencement between plaintiff and O'Brien that the work should be done or the material furnished from time to time, as required by the nature and necessities of the job O'Brien was engaged in performing. This finding, instead of supporting the theory of appellants, we think, supports the idea that the understanding between plaintiff and O'Brien was that the materials were to be furnished as needed, in the completion of O'Brien's job, and charged in one account, to be settled for when all the material necessary had been furnished. If this were the understanding, it would make the delivery of the materials one contract, regardless of the fact that they were delivered upon different days. Jones, Liens, § 1435.
Appellants contend that findings Nos. 6 and 9 were conclusions of law and should not have been submitted to the jury. We do not think so. They were questions of fact, and were properly submitted. See Phil. Mech. Liens, § 326, and authorities cited; Jones, Liens, § 1449, and authorities cited; Turner v. Wentworth, 119 Mass. 459. Some of the authorities hold it to be error to refuse to submit the question to the jury whether the materials in such cases were delivered under an entire contract or under separate ones. Phil. Mech. Liens, § 326. We think the proper rule to be, and the one supported by ample authority, that when all the items in the account relate to one transaction, and is...
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