Honstain Brothers Co. v. Linden Investment Co.
| Decision Date | 15 March 1920 |
| Docket Number | 1915 |
| Citation | 177 N.W. 114,45 N.D. 210 |
| Court | North Dakota Supreme Court |
On Rehearing March 15, 1920.
Appeal from the District Court of Cavalier County, Honorable Chas M. Cooley, Special Judge.
Modified and affirmed.
Modified and affirmed, with costs.
Geo. M Price, for appellant.
"The name of the person by whom the claimant was employed, or to whom he furnished the materials, must be stated in the claim of the lien." Bloom, Mechanic's Liens, p. 381; Hogan v. Bigler, 96 P. 97; Maderia Flume Co. v Kendall, 52 P. 304.
A mechanic's lien being a creature of statute, every step prescribed by statute must be shown to have been substantially followed, or the lien does not exist. Stoltze v. Hurd, 20 N.D. 412.
A party who sues on a special contract to recover compensation alleged to be due on its performance must show performance. 9 Cyc. 757-759; Braseth v. State Bank, 12 N.D. 486; Kupper v. McConville, 35 N.D. 622.
The mere fact of taking possession of the building does not of itself amount to an acceptance of the same by the owner, as having been erected according to the contract. Anderson v. Todd, 8 N.D. 158.
Kvello & Adams and Jesse Van Valkenburg, for respondent.
Every person for whose immediate use and benefit any building, erection, or improvement is made, having the capacity to contract, including guardians of minors or other persons, shall be included in the words "owner thereof." N.D. Rev. Codes 1905, § 6248; Johnson v. Soliday, 19 N.D. 465, 126 N.W. 99.
The owner shall be presumed to have consented to the doing of any such labor or the making of any such improvement, if at the time he had knowledge thereof, and did not give notice of his objection thereto to the person entitled to the lien. Rev. Codes 1905, § 6237; Turner v. St. John, 8 N.D. 245, 78 N.W. 345.
Where a lien statement contains all the requirements of law, it is not necessarily fatally defective because it contains more. John Paul Lumber Co. v. Hormel, 61 Minn. 303, 63 N.W. 718; Lindquist v. Young, 138 N.W. 28; Barndt v. Parks, 115 N.W. 197.
OPINION
The plaintiff brings this action to recover the balance for the construction of a grain elevator at Mowbray. For such construction Donovan agreed to pay $ 7,000 and the excess freight over and above the cost of laying down the material at Wales, North Dakota. Such excess freight was $ 240.27; one sieve was $ 20.50; the total was $ 7,260.77. Defendant paid, by check, $ 4,000; he paid on freight $ 144.60, and he was given credit for unloading stone $ 10. The total credit is $ 4,154.60. The balance due is $ 3,106.17, which is the sum plaintiff is entitled to recover, with interest from October 18, 1908, until July 1, 1915, at 7 per cent a year, and after that, with simple interest at 6 per cent a year.
As it seems, the demand of the complaint is for a lesser sum, but in this case, where the parties have answered and made positive proof of the amount due, the demand is immaterial. Comp. Laws, § 7680. The district court made findings and judgment against Donovan, and he appeals to this court and demands a trial de novo.
It is certain that in the year 1908 the elevator was built for and at the request of Donovan. It was completed and turned over to him on October 18, 1908, and he accepted it without any objection, and since then he has continued to use it, and if used to its full capacity, it has probably paid for itself every year. There is really no dispute concerning the facts, and the only defense is that the elevator has not a capacity of 40,000 bushels. It was built strictly in accordance with written plans and specifications and blue prints, and under the supervision of a party who represented Powers & Donovan. (46) Under the head "Size and Design" the specification reads thus: "The elevator is to be 32 x 39 feet on the ground and cribbed to a height of 45 feet to the eaves and 4 feet higher in the center above the eaves, making in all 49 feet." At the foot of the specification there is added this memoranda of agreement: "It is understood and agreed that these plans and specifications are a duplicate of the elevator that Honstain Brothers Company are now building at Langdon for the Farm Elevator Company, except that the farm elevator is to be 60,000 bushels capacity, and the elevator for the Linden Investment Company is to be 40,000 bushels capacity." Now it appears from computation that the metes and bounds of the elevator, as given in the specification, do include a number of cubic feet equal about 40,000 bushels, but because of partitions, bins, and a large hallway, the working capacity of the elevator was only about 35,000 bushels. And the contention is that under the terms of the written contract defendant was entitled to an elevator with a working capacity of 40,000 bushels, regardless of the specified dimensions or the metes and bounds. There is no showing that the Langdon elevator had a working capacity of 60,000 bushels, and the chances are that it had no such capacity, and there is no claim that, in making the oral contract for the elevator, a word was ever said concerning its capacity. It seems the capacity clause was inserted merely by way of description, and not as a contract to make the elevator wider, longer, or higher than the specified number of feet. If the elevator had varied from the particular description--the width, the length, and the height, as given in the specification--then the plaintiff might have objected that it did not conform to the contract. In such a case the particular description controls that which is general.
Maxim, § 7268. "Particular expressions qualify those which are general." "Thus in conveyances of land the words merely expressive of quantity must yield to a particular description by metes and bounds." 27 Cyc. 1138. "The statement of quantity is considered the most uncertain of a description, and when inconsistent with boundaries, courses, and distances, quantity must be rejected." Kruse v. Scripps, 11 Ill. 98.
"In conveyances, descriptive words, when definite and certain, are to be looked to rather than words expressing quantity." Maguire v. Bissell, 119 Ind. 345, 21 N.E. 326.
Clearly it was not the intention of the parties to contract that the specified length, width, and height of the building should be extended so as to make it contain a specified number of bushels. If such had been the intention, then it should have been clearly expressed in words. Hence, on all the evidence, we must conclude that the building was constructed in accordance with the contract and the plans and specifications.
Concerning the mechanic's lien, there is some question as to its validity, but it is of slight importance, as the defendant is perfectly responsible, and he has given bonds to pay the judgment. However, it appears that Donovan owned the lots on which he caused the building to be constructed, and, under the statute, the plaintiff had a right to a lien on the lots and the building, even without the filing of a lien. The purpose of filing a lien is to give notice to subsequent purchasers and encumbrancers. The contract was to erect a building on lots 1 and 2, sec. 25, township 164 of range 61, in Cavalier county, North Dakota. The building was duly erected, and there is no question concerning the price, the excess freight, or the payments. For some eleven years Donovan has had the use of the good building and the use of the balance due for a low rate of simple interest. His love of litigation must have been quite fully satisfied. Now the seal of the court should be given to his love of honesty. The judgment of the court must be that the plaintiff do have and recover from the defendant E. I. Donovan the sum of $ 3,106.17, with simple interest on the same, at 7 per cent a year from October 18, 1908, to July 1, 1915, and after that, with simple interest at 6 per cent a year, with the costs of the action and the costs of the appeal; and that the plaintiff may issue a general execution for the collection of the same; also, that, for the amount so adjudged to be due, the plaintiff shall have a lien on said lots 1 and 2, and may cause the same to be sold under a special execution, as provided by law.
Let judgment be entered accordingly.
Modified and affirmed, with costs.
In my opinion the judgment appealed from should be affirmed without modification.
In this action a rehearing was ordered. On the reargument defendant contended that the former decision is erroneous:
1. Because it modifies the judgment appealed from, in this, that it finds that the defendant is not entitled to the $ 900 allowance for damages which was made by the trial court.
2. Because it fails to allow the defendant a credit for $ 803.29, which it is contended the plaintiff was overpaid by the Linden Investment Company in the action in the United States district court. In other words, it is contended that the judgment of this court should be that proposed in the dissenting opinion.
The majority members have again considered the evidence in the case, and it may not be amiss to make further reference to some of the facts which were not alluded to in the former opinion.
In the fall of 1908, the plaintiff company was engaged in constructing an elevator for the Farmers Elevator Company, at Langdon, in which city the defendant Donovan...
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