Hot Springs Plumbing & Heating Co. v. Wallace.

Decision Date26 October 1933
Docket NumberNo. 3791.,3791.
Citation38 N.M. 3,27 P.2d 984
CourtNew Mexico Supreme Court


Appeal from District Court, Sierra County; Harry P. Owen, Judge.

Suit by the Hot Springs Plumbing & Heating Company against Frank Wallace and another, wherein the Love Lumber Company intervened. From a decree, defendant appeals, and intervener cross-appeals.

Affirmed in part, and modified, with directions, in part.

Evidence that prices charged for materials represented reasonable value held properly considered though elicited by leading questions, since allowance of leading questions is discretionary with trial court.

Edward D. Tittmann, of Hillsboro, for appellant.

J. Benson Newell, of Las Cruces, for appellees.

HUDSPETH, Justice.

The Hot Springs Plumbing & Heating Company brought suit against Frank Wallace and Fred Standau to foreclose a mechanic's lien for plumbing work done on a building erected by Standau, as lessee of Wallace, on ground belonging to Wallace, in the sum of $717.93. The Love Lumber Company filed a petition in intervention in this suit, seeking foreclosure of its lien for materials furnished to the defendant in the sum of $747.03. Wallace denied, on information and belief, the allegations of the complaint and of the petition of intervention. Defendant Standau did not appear. The case was tried to the court without a jury, and a decree entered sustaining the lien of the Hot Springs Company in the full amount of $817.92, including interest and attorney's fees, and that of the Love Lumber Company in the amount of $574.35, and ordered the property sold to satisfy these liens. From this judgment defendant Wallace appeals to this court. The intervener, Love Lumber Company, prosecutes a cross-appeal from that portion of the decree which disallowed an item of $225.58 for Celotex furnished by it in the construction of the building.

It appears that on or about December 11, 1929, defendant Standau made an oral agreement with the Love Lumber Company for the purchase by him of building materials to be used in and about the construction of an annex to, and improvements on a bathhouse building standing upon Wallace's property. By this agreement Standau was to pay for the materials furnished in installments of $100 cash at the time of the first delivery, $100 thirty days thereafter, and $50 each month thereafter until the full amount should be paid. According to the testimony of J. E. Love, there was no definite understanding as to exactly how much material the construction would require. Standau “thought when he started that $700.00 would be about what he required,” but Love “didn't agree to furnish him just $700.00. He had told me about what he wanted to do, and I to furnish the material and he to pay it, except that he thought that by the first of April he could finish paying the entire amount, if not he would increase to $100.00 a month.” Materials were furnished as ordered at short intervals between December 11th and approximately March 1st. Some time in February or March-the exact date is not clear, but apparently after close to $700 worth of material had been furnished-there was a temporary discontinuance in the furnishing of material. According to the witness Love: “That was when Mr. Wallace and Mr. Standau was having quite a little trouble, Mr. Standau was having a hard time meeting his payments and told me he couldn't get the money and I saw it was going to take quite a bit more than he thought it would and I rather held him off. I discouraged him from trying to finish it up until I had this talk I mentioned with Mr. Wallace about the first of April.” His testimony as to the talk mentioned was as follows:

“I went to see him (i. e., Wallace); Standau had agreed that the first of April he would make his last $50 payment and after that he thought he would be able to pay it all and he wasn't able to do that and I went to Wallace and talked, and Mr. Wallace had told me at different times that he was having trouble getting his rent, so I talked to Mr. Wallace along about this time and he said that he was still afraid that Standau was going to fall down and he said, how much does he owe you and I said approximately $350.00 and he says ‘Is that so, he is getting along better than I thought. He told me he had bought seven or eight hundred dollars worth from you and put in there,’ and I said He has but he has paid it down to $350.00.’

“Q. Was that all that was said? A. That is about the conversation, yes, Mr. Wallace talked like he was very well pleased with the way it was going. Then I went ahead after that on the strength of that conversation with Mr. Wallace and furnished Standau further material to finish up inside.

“Q. All under the same arrangement that you had with him? A. Yes sir, except at that time, when I furnished him this other to finish it up, I stipulated that he must pay me more money and he agreed to pay me $200.00 within ten days and then pay $100.00 a month from then on, but he didn't.”

The Love Lumber Company resumed the furnishing of material on April 8th, and continued to do so, apparently under the new arrangement as to payment, until May 10th, when the last item of material needed for the completion of the building had been furnished.

As to the claim of the Hot Springs Company, it appears that they entered into a verbal agreement with Standau in the early part of January, 1930, for the installation of bathtubs, showers, and a water heating system in the building then under construction. The work, commenced almost immediately, was interrupted on January 24th, and not continued until the following April 17th. The entire plumbing work was completed on May 7th. The reason for the interruption of the work between January 24th and April 17th was, according to the testimony of plaintiff's witnesses, that the installation of fixtures depended upon the progress made in the building construction and carpenter work, and that some of the plumbing work could not be done until the building had been practically completed inside and out.

Substantially the same points relied upon for reversal of the judgment in favor of the Love Lumber Company are relied upon for reversal of the judgment in favor of the Hot Springs Plumbing Company. We shall here discuss the points in the order in which they are made, first, with reference to the claim of the Love Lumber Company, and, secondly, with reference to the claim of the Hot Springs Plumbing Company.

[1] The first point advanced by appellant is directed more particularly to the claim of the Love Lumber Company, and is that: “There is a fatal variance between the allegations of the lien claim and the proof in this, that the lien claim alleges and sets out one contract only, whereas it appears from the evidence that there were two contracts.”

That portion of the statement of lien material to the contention made reads as follows: “That said lien arises by virtue of a contract made and entered by and between the lien claimant and Fred Standau, lessee and was at the time in possession of the premises, on the 11th day of December, 1929, by the terms of which the claimant agreed to furnish certain building material on said premises to be paid for as follows: One hundred dollars cash, at the time said contract was made, One hundred dollars thirty days thereafter, and fifty dollars each month thereafter until the amount was fully paid; that on the 12th day of February, 1930, said purchaser agreed to pay claimant two hundred dollars cash and one hundred dollars each month thereafter until the full amount was paid.”

The first bit of evidence relied upon in support of appellant's contention is the answer filed by the Love Lumber Company, which alleged that on December 11th the company entered into a contract with Fred Standau, and that on February 12th they entered into “another contract” with him. Inasmuch as the answer containing this allegation was later in the proceedings superseded by the Love Lumber Company's petition of intervention, the allegation cannot be considered; the answer not having been formally introduced into evidence at the proper time. See Wigmore on Evidence (2d Ed.) § 1067. Cf. Albright v. Albright, 21 N. M. 606, 157 P. 662, Ann. Cas. 1918E, 542.

[2] The statement of lien clearly sets out two agreements as to the time and method of payment. The evidence accords therewith. However, it seems to be appellant's theory that the testimony shows that the original agreement of December was that the Love Lumber Company was to furnish Standau with $700 worth of material, and that after approximately that amount of material had been furnished Standau wanted additional material, and that the additional material was furnished to him under an entirely new and independent agreement. Appellee's theory is that the original agreement was that the Love Lumber Company was to furnish Standau with materials sufficient for the construction of his bathhouses. The theory of the proof here advanced by appellant was not only not urged in the trial court, but it is inconsistent with defendant's proposed finding of fact No. 3. He cannot, therefore, urge it here. Elsewhere in appellant's brief the correctness of appellee's contention as to what the original agreement was appears to be conceded. We are unable to find any merit in appellant's first contention, and it will therefore be overruled.

Appellant's second point relied upon for reversal raises a question as to whether the statements of lien of the Love Lumber Company and of the Hot Springs Plumbing Company were filed within such time as to permit the allowance of a lien, under the statute, for all of the items contained in those statements of lien that were allowed in the decree of the trial court.

[3] Under the rule of Freidenbloom v. Pecos Valley Lumber Co., 35 N. M. 154, 290 P. 797, both the lumber company and the Hot Springs...

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