Home Plumbing & Contracting Co. v. Pruitt

• Decision Date: 07 June 1962
• Docket Number: No. 6924,6924
• Citation: 1962 NMSC 75,372 P.2d 378,70 N.M. 182
• Parties: HOME PLUMBING AND CONTRACTING COMPANY, a partnership, and Home Lumber Company, a corporation, Plaintiffs-Appellees, v. Paul PRUITT, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 378

372 P.2d 378

70 N.M. 182

HOME PLUMBING AND CONTRACTING COMPANY, a partnership, and Home Lumber Company, a corporation Plaintiffs-Appellees, v. Paul PRUITT, Defendant-Appellant.

No. 6924.

Supreme Court of New Mexico.

June 7, 1962.

Blythe & Norvell, Clovis, for appellant.

Morris Stagner, Clovis, for appellees.

MOISE, Justice.

The appellant, Paul Pruitt, was sued by the appellees, Home Plumbing and Contracting Company, a partnership, and Home Lumber Company, a corporation, to foreclose two mechanics liens, one filed by each, which grew out of construction of a swimming pool on appellant's property by one Jack Brown, pursuant to contract between appellant and Brown. Brown was made a third party defendant, and failed to answer or otherwise plead and appellant was given a judgment against him for the amounts adjudged due to appellees.

By his answer, appellant, among other issues, raised the question of whether or not the instruments filed by appellees created liens against his property; and denied that the materials sold by appellees were furnished to him.

The court, having ruled at the trial in favor of appellees and against appellant, this appeal was perfected and these issues presented as two of the points relied on for reversal. In addition, appellant asserts that appellee failed to introduce the liens in evidence, failed to produce substantial evidence of the amount due, and that a personal judgment for the amount claimed and for attorney fees was improperly entered against appellant.

The claim of lien filed by Home Plumbing and Contracting Company was signed in the name of the company by W. C. Burran, Partner, and bears an acknowledgment in the form generally provided by Sec. 43-1-9, N.M.S.A.1953, for acknowledging instruments affecting real estate. It recited that on the date shown therein 'before me (the subscribing notary public) personally appeared W. C. Burran, to me known to be the person who executed the foregoing instrument as a partner of the co-partnership of Home Plumbing and Contracting Company, and said W. C. Burran acknowledged that he executed the same as his free act and deed, and as the free act and deed of the said co-partnership, Home Plumbing and Contracting Company, and as the free act and deed of W. C. Burran, partner of said co-partnership.' This was followed by the signature, statement of expiration date of commission and seal of the notary public.

The claim of lien of Home Lumber Company was signed by W. C. Burran, Secretary-Treasurer, below which appears the following:

'State of New Mexico

The County of Curry} §§

'W. C. Burran, Being duly sworn, says: That he is the Secretary-Treasurer of the Home Lumber Company, a corporation, named in the foregoing claim; that he has read said claim and knows the contents thereof; and that the matters and facts therein started (sic) are true and correct.

'W. C. Burran'

This was subscribed and sworn to before a notary public whose signature, seal and date of expiration of commission appear thereon.

Our statute (Sec. 61-2-6, N.M.S.A.1953) requires that a claim of lien 'must be verified by the oath of' the person claiming the benefit of the lien statute 'or of some other person.' Accordingly, we must determine if the two claims here in issue are verified by oath.

In the early days of our history, this court was disposed to hold that the mechanics lien law was in derogation of the common law and should be strictly construed, Finane & Elston v. Las Vegas Hotel & Improvement Company, 3 N.M. 411, 5 P. 725. In Minor v. Marshall, 6 N.M. 194, 27 P. 481, it was held, while adhering to the strict construction rule, that strict construction did not contemplate arbitrary or inequitable meaning but that the requirements were met by substantial compliance with the statute. However, it was not long until it was determined that the law was in fact remedial in nature and should be liberally construed. Ford v. Springer Land Association, 8 N.M. 37, 41 P. 541. The prior contrary holding was expressly overruled.

In Lyons v. Howard, 16 N.M. 327, 117 P. 842, this court applied the rule of liberal construction to a verification there under attack and concluded that it was a sufficient compliance with the statute. In Hot Springs Plumbing & Heating Co. v. Wallace, 38 N.M. 3, 27 P.2d 984, the development of the law was again discussed and the rule of liberal construction adhered to, and in this case the following language of Justice Freeman in his dissent in Minor v. Marshall, surpa, was quoted as the law:

'I think the better rule may be stated as follows, to-wit: That where it appears that the miner or mechanic has used words which by plain intendment were designed to operate as a verification, and where it is evident that the miner or mechanic was endeavoring to secure the benefit of the statute provided for such cases, and where such statement is sworn to, it ought to be regarded as a verification, within the meaning of the statute.'

Applying the law as thus announced, we are clear that the verification to the claim of lien of Home Lumber Company is sufficient and that appellant's attack thereon must fail.

However, as to the Home Plumbing and Contracting Company claim, we fail to find any words whatsoever which by intendment, plain, or otherwise, 'were designed to operate as a verification.' Neither do we find where the statement of claim was in any manner sworn to.

In Black's Law, Dictionary, 'verification' is defined as:

'Confirmation of correctness, truth, or authenticity by affidavit, oath or deposition.'

See 44 Words and Phrases for other definitions.

While reiterating our adherence to the rule of liberal construction, we are convinced that with a total absence of any words confirming correctness, truth or authenticity by affidavit, oath, deposition or otherwise, to conclude that the acknowledgment to the instant claim of lien was a sufficient compliance with the requirements of a verification would be stretching the rule of liberal...