Houston Lumber Co. Et At. v. Wetzel
| Decision Date | 07 November 1911 |
| Citation | 69 W.Va. 682 |
| Court | West Virginia Supreme Court |
| Parties | Houston Lumber Co. et at. v. Wetzel & Tyler Railway Co. Friok & Lindsay Co. v. Same. |
Due Sufficiency.
The "just and true account of the amount due", required by section 4, ch. 75, Code (1906) to preserve a lien for labor, or material furnished, given by section 2, of said chapter, if the contract therefor be made directly with the owner of the property, need not state the account by items giving the year, month and day, though it is proper, and the better practice to do so. (p. 685).
Sufficiency Pleading.
And although it is essential to the validity of such lien that said account be filed in the clerk's office within sixty days after the lienor ceases to labor or furnish material, it need not show affirmatively on its face that it was so filed within the time prescribed. In a suit to enforce such lien, however, this fact with all other facts necessary to a valid lien must be alleged and if controverted fully proven, (pp. 685, 686).
If the bill to enforce such a lien alleges the existence of all facts essential to a valid lien for labor or material, and these allegations are not controverted, they must for the purposes of the suit be taken as true, unless some exhibit filed therewith and vouched for the truth thereof, impugns the truth of some one or more of the material facts alleged, (pp. 685, 686).
The fact of the filing of such account in the county clerk's office within the time required by said section 4, ch. 75, Code (1906) when so alleged in the bill, and proven or not controverted by answer, is not impugned by the original of such account filed as an exhibit with the bill, which does not show on its face the year the last material was furnished, or by the endorsement by the clerk on the back thereof showing the date of the filing thereof and the book and page where recorded, vmich does not appear to be signed by such clerk, (p. 688).
Description of Property Sufficiency.
A lien for material furnished a railway company for constructing its railway which described the property on which the lien is claimed, as "the railway of said corporation situate in the Counties of Wetzel and Tyler and extending from the City of Sistersville in Tyler County to the Town of Brooklyn in Wetzel County", is "sufficiently accurate" for identification, and satisfies all requirements of said section 4, eh. 75, of the Code, (p. 689).
Exceptions Necessity.
If error of law appear on the face of a decree, or the report of a commissioner, though not excepted to, it may be corrected on appeal to this Court by the party aggrieved thereby, (p. 690).
A mechanics' lien begins from the time the labor or the furnishing of material begins, and has priority over a deed of trust subsequently executed on the same property, (p. 691).
Appeal from Circuit Court, Wetzel County.
Action of the H. C. Houston Lumber Company and others and by the Frick & Lindsay Company against the Wetzel & Tyler Railway Company. From an adverse decree, and a decree denying their motion to reverse and set aside the former decree so far as it affected their claim, plaintiffs W. F. White and another appeal.
Affirmed in pari, Reversed in part, and Rendered. Neal & StricMing and Thomas P. Jacobs for appellants. S. Bruce Hall, for appellees Mercantile Trust Company and others; E. L. Robinson, for appellees First National Bank and others.
Appellants, White Bros., plaintiffs below, complain of two decrees of the circuit court, the first, pronounced February 24, 1908, adjudicating the principles of the cause, denying them any relief, and decreeing a sale of the property of the defendant corporation to satisfy other debts and liens proven and decreed thereon; the second, pronounced February 10, 1909, denying their motion and refusing, on appellants' petition filed, to reverse and set aside said former decree so far as it affected their claim.
Appellants sought to establish and have decreed against the property of the defendant company a lien for certain materials alleged to have been furnished by them to it, under contract, to be used, and which the bills allege were used by it in the erection and construction of its said railway in Wetzel and Tyler counties, and the same property mentioned and described in their account therefor filed with and made a part of said bills.
So far as we can see the averments of the original and amended bills satisfy all requirements of a bill to enforce such a lien, viz: The existence of the contract; the terms thereof; that the material was furnished pursuant to the contract; the filing of just and true account of the amount due thereon to them with the clerk of the county court within the time required by law; a description of the property against which the lien is asserted; the name of the owner thereof, and that the suit was brought within the time required by law, and the existence of the debt. Lunsford v. Wren, 64 W. Va. 458, and cases cited.
These bills were not demurred to, nor were the allegations thereof controverted by any of the answers filed. Both bills specifically allege that within sixty days from the time appellants ceased to furnish said material they filed with the clerk of the county court of said Wetzel county a just and true account of the amount due and owing them from said railway company after allowing all credits, together with a description of the property intended to be covered by said lien, duly sworn to January 19, 1904, and which was duly recorded in Mechanic's Lien Book, as would more fully appear from said account filed as "Exhibit F" therewith. These allegations, therefore, being well pleaded, and for the purposes of the suit stood confessed, and by the very terms of the statute, section 36, ch. 125, Code 1906, no further proof was required.
The correctness of the decrees below depend on the construction that should be given our statute, section 4, ch. 75, Code (1906). It provides: "Every lien provided for in the second and third sections shall be discharged unless the person desiring to avail himself thereof shall, within sixty days after he ceases to labor on, or furnish material or machinery for such building or other structure, file with the clerk of the county court of the county, in which the same is situated, a just and true account of the amount due him, after allowing all credits, together with a description of the property intended to be covered by the lien, sufficiently accurate for identification, with the name of the owner or owners of the property, if known, which account shall be sworn to by the person claiming the lien, or some person in his behalf." Appellants' lien, "Exhibit F" with the bill, apparently the original account filed with the clerk of the county court, is dated January 1, 1904, and. is sworn to January 19, 1904. The account purports to be itemized, beginning September 3, and running through September, October, November and ending December 16, and showing a total balance, after allowing credits, of $2,920.37; but at no other place in the account, except the date January 1, 1904, does the year appear. On the back of the account there is this endorsement: In the return of the clerk to a writ of certiorari bringing up this memorandum, he certifies this note to be by the clerk, and a part of the record of the cause. It does not appear to be signed by the clerk. If, however, the facts alleged in the bills he not impugned by this exhibit, or the memorandum thereon, they must be regarded as facts established for the purpose of this suit. The contention of appellees, however, is that as the lien does not show affirmatively, on its face, as they contend it must, every fact necessan to be alleged and proven to make it a good and valid lien on the property, the lien must fail. They say that by the omission of the year over or opposite the items therein the account fails to show affirmatively "when the work was performed and material furnished", 'wherefore fatally defective; and that it is not shown on the face of the exhibit, nor at all, except by allegation, which they say is not sufficient, that it was filed in the clerk's office as the statute requires, within sixty days after appellants ceased to furnish said material. Does the "just and true account of the amount due" required by our statute call for an itemized statement, with years, months, and days, when the contract is made directly with the owner? The authorities, or the great weight of them, we think, say no. 27 Cyc. 184. This authority says: Boisot on Mech. Liens, section 411, says: "The claim need not contain an itemized account of the lien debt, in the absence of any language in the statute expressly or by necessary implication requiring it." And in section 418 this writer says: ...
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