Howard v. Fisher

• Decision Date: 09 December 1929
• Docket Number: 11906.
• Citation: 283 P. 1042,86 Colo. 493
• Parties: HOWARD et al. v. FISHER et al.
• Court: Colorado Supreme Court

283 P. 1042

86 Colo. 493

HOWARD et al. v. FISHER et al.

No. 11906.

Supreme Court of Colorado, En Banc.

December 9, 1929

Rehearing Denied Jan. 6, 1930.

Error to District Court, City and County of Denver; Charles C Butler, Judge.

Action by Francis J. Fisher against Emma Howard, the Midland Savings & Loan Company, Louis Cook, and another, doing business as Cook-Weinstein Plumbing Company, and others, wherein Katharine Slohm Auslender petitioned for leave to intervene and wherein defendant last-named filed a cross-complaint. From the decree, the first two named defendants and intervener bring error.

Affirmed in part, and in part reversed and remanded, with directions.

Barker, Lindstrom & Webster, of Denver, for plaintiff in error howard.

John D Rogers, of Denver, for plaintiff in error Midland Savings & Loan Company.

Wayne C. Williams, of Denver, for plaintiff in error Auslender.

Bartels & Blood, Walter W. Blood, Pershing, Nye, Tallmadge & Bosworth, Robert G. Bosworth, and Ralph W. Smith, all of Denver, for defendants in error Fisher, Cook-Weinstein Plumbing Co., and Nace.

Doud & Walker, of Denver, for defendant in error Geo. A. Barrows Lime Co.

Grant, Ellis, Shafroth & Toll and C. Russell Shetterly, all of Denver, for defendant in error Davis.

Jacob V. Schaetzel and Walter E. Schwed, both of Denver, for defendant in error E. Burkhardt & Sons Steel & Iron Works Co. and Brannan.

ADAMS J.

This cause is now before us on rehearing. A decision in department was heretofore rendered, and opinion delivered by a former member of this court prior to his retirement. Petitions for rehearing were filed, and on his recommendation, concurred in by the other justices, the rehearing was granted. The cause then went to banc, further briefs were filed, and the case was thereafter argued orally and reassigned. The former opinion has not been reported. Our conclusions in the main are not radically different from what they were before, but our further researches and additional reasons for our decision justify a fuller treatment of the rights of the numerous parties involved. We have therefore withdrawn our former opinion and this decision en banc is substituted.

This is an action to foreclose mechanics' liens on two adjoining apartment buildings and certain lots in Denver, covered by one contract. It was brought by Francis J. Fisher, a mechanic's lien claimant, plaintiff, against defendants Emma Howard, owner of the premises, the Brendle-Brent Construction Company, principal contractor, the Midland Savings & Loan Company, mortgagee (hereinafter called the Midland Company), and also against numerous defendant lien claimants and others, who were interested or claimed interests in the subject of the action. Katharine Slohm Auslender, one of the plaintiffs in error, was a purchaser pendente lite. She petitioned for leave to intervene; her request was granted, but the order was later rescinded, and all motions filed by her were stricken. The case was tried to the court.

The mortgages held by the Midland Savings & Loan Company, one of the plaintiffs in error, were held to be subordinate to mechanics' liens. Nearly all of the mechanics' lien claims set forth in the complaint of Fisher, and those in the cross-complaints of certain defendants, were sustained, and decree of foreclosure was entered. The several amounts awarded to each are set out in a table that follows. Plaintiffs in error seek to have the judgment reversed on errors assigned. There is no controversy between mechanics' lien claimants, and there are no cross-errors. There is no substantial dispute as to the facts.

Some of the parties in the district court were only nominal. There were twice as many parties there as there are here, or need to be here; but the title to the cause on error, as given to us, was badly misleading. We have been compelled to revise it. It does not precisely correspond with the several judgments, but is taken from the acknowledgments of service of sci. fa. No one but ourselves make any complaint, and we consider the error as merely clerical, but necessary to be corrected. The title should and will now read as follows:

'Emma Howard, the Midland Savings & Loan Company, a Corporation, and Katharine Slohm Auslender, Plaintiffs in Error, v. Francis J. Fisher, the Denver Lumber Company, a Corporation, the George A. Barrows Lime Company, a Corporation, George E. Mayer, Doing Business under the Name of the George Mayer Hardware Company, the Inter-Mountain Insulex Company, a Corporation, Louis Cook and Harry Weinstein, Doing Business as Cook-Weinstein Plumbing Company, Goldberg Brothers, William O. Davis, Amy E. Nace, and J. W. Brannan, Defendants in Error.'

Wm. M. Brendle and Robert C. Brent, doing business as the Brendle-Brent Construction Company (hereinafter called 'Brendle-Brent'), principal contractors, were parties below, but their default for failure to answer was entered, and they are not made parties to the record in this court. The defendants in error claim liens by virtue of being subcontractors or assignees thereof by direct or mesne assignments.

National Surety Company, hereinafter frequently referred to, is a corporation engaged in the principal business of writing indemnity bonds. It is Brendle-Brent's bondsman on the building contract. The surety company is not a party to the action, although plaintiffs in error sought to have it made such, but the trial court refused.

The money judgments, rendered on Fisher's complaint and on the several cross-complaints of defendants named below, are as follows:

--------------------------------------------------------- Judgment Judgment Creditors. Debtors. Amount. --------------------------------------------------------- 1 Francis J. Fisher Howard and Brendle-Brent $13,758.74 1a. Francis J. Fisher on twelfth to sixteenth causes of action Brendle-Brent 7,887.17 2. Denver Lumber Co. Howard and Brendle-Brent 39.58 3. Geo. A. Barrows, C. T. Barrows, and G. E. Threewit, substituted for the Geo. A. Barrows Howard and Lime Company Brendle-Brent 596.31 4. Geo E. Mayer Howard and Brendle-Brent 106.70 5. Inter-Mountain Insulex Howard and Company Brendle-Brent 725.38 6. E. Burkhardt & Sons Howard and Steel & Iron Works Co. Brendle-Brent 1,341.47 7. Louis Cook and Harry Weinstein, doing business as Cook- Weinstein Plumbing Company Brendle-Brent 16,862.60 8. Goldberg Brothers Howard and Brendle-Brent 132.60 9. William O. Davis Howard and Brendle-Brent 3,628.55 10. Amy E. Nace Howard and Brendle-Brent 418.54 --------------------------------------------------------- $45,497.64 ---------------------------------------------------------

The above items represent labor performed on, or materials used in, the buildings. Principal and accumulated interest to the date of the decree was allowed. The judgment for $45,497.64 was held to be a first lien on the lots and buildings, and the decree directs foreclosure sale thereof to satisfy the judgment, proceeds of the sale to be prorated.

For convenient reference only, we shall divide the above judgment into classes A and B. Class B consists of the following: No. 1a, Francis J. Fisher, on twelfth to sixteenth causes of action, $7,887.17, and No. 7, Cook-Weinstein, $16,862.60. Total, $24,749.77. All others, the total of which is $20,747.87, comprise class A. There is no serious dispute about the class A judgments.

The above allowance of $7,887.17 to Fisher grew out of certain original liens of subcontractors, supposedly assigned. Exclusive of interest, they are as follows: Morris R. Price, $1,603.16; Henry Afman, $3,400; Central Electric Supply Company, $754; Federal Lumber Company, on two counts, $1,294.60.

The judgment in favor of Cook-Weinstein, also subcontractors, was recovered on their separate cross-complaint, wherein they claim in their own right; but the proof disclosed that their claim was prosecuted for the benefit of National Surety Company, as were also the Fisher claims to the extent of $7,887.17. Fisher's complaint, as amended at the trial, alleges mesne assignments, without mentioning the surety company.

Preliminary to the chronology that follows, and for a better understanding of class B claims, we add that they came about under the following circumstances: Brendle-Brent, principal contractors, abandoned the work before it was finished; they assigned their building contract to the surety company. The latter carried on the work to partial completion, and notified Cook-Weinstein and some of the other subcontractors that it (the surety company) would pay their claims. The surety company in fact did pay all subcontractors represented in class B, but now seeks to foreclose mechanics' liens under the Fisher complaint and Cook-Weinstein corss-complaint, and thereby recover the money thus paid.

No personal judgment was obtained against Emma Howard, the owner, on the claims in class B; but, as stated above, the decree of the trial court markes the entire judgment for $45,497.64 a lien on the property. Attorneys for Fisher and Cook-Weinstein in open court voluntarily waived personal judgment against Mrs. Howard as to the claims in class B.

Further facts leading up to the rendition of the foregoing judgment and decree are as follows:

January 20, 1925, defendant Emma Howard was the owner of unimproved lots 30, 31, 32, 33, and 34, block 90, J. W. Smith's addition to Denver. On that date Mrs. Howard entered into a written contract with Brendle-Brent, as contractors, for the construction of two adjoining apartment buildings on above lots, each building to be a duplicate of the other, for the agreed sum of $71,710, for the two buildings. Among other things, the contractors agreed to provide all the material and to perform all work,

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