Johnson v. Salter

• Decision Date: 19 November 1897
• Docket Number: Nos. 10,670-(83).,s. 10,670-(83).
• Citation: 70 Minn. 146
• Parties: OTTO JOHNSON and Another v. FRANK I. SALTER and Others.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

70 Minn. 146

OTTO JOHNSON and Another v. FRANK I. SALTER and Others.¹

Nos. 10,670-(83).

Supreme Court of Minnesota.

November 19, 1897.

Appeal by defendant Salter from an order of the district court for St. Louis county, Moer, J., denying a motion for a new trial, after a trial before Morris, J. Affirmed.

Francis W. Sullivan, for appellant.

Eckman & Stevenson, for respondents.

START, C. J.

This action was brought to recover from the defendant Salter the balance due to the plaintiffs for the erection of three frame buildings, and to have the amount thereof decreed to be a lien upon the three lots upon which the houses were erected.

Findings of fact and conclusions of law were made, whereby judgment was ordered for the plaintiffs, decreeing the entire amount claimed to be a lien as prayed. The defendant Salter appealed from an order denying his motion for a new trial. The trial court found: That the defendant Salter was and is the owner of lots 356, 358, and 360 in block 111 Duluth Proper, which are contiguous and contain less than one acre in area. That on September 20, 1895, the parties entered into a written contract whereby the plaintiffs agreed to furnish all labor and materials and erect for the defendant two houses, one on lot 358 and one on lot 360, for the agreed price of $1,641 for the two. That by the same contract the plaintiffs also agreed to build an additional or third house on lot 356, for the same price pro rata as stipulated for the first two houses named, if the defendant should so elect within thirty days from the date of the contract. By the terms of the contract he reserved the right to add this third house to the contract. That on October 10, 1895, pursuant to the terms of the contract, the defendant notified the plaintiffs to build the third house on lot 356, and between September 20, 1895, and December 3, 1895, the plaintiffs built the three houses on the three lots respectively, according to the terms of the contract. The first item for the erection of the two houses first named in the contract was furnished September 21, 1895, and for the third house October 10, 1895. That on February 7, 1896, the plaintiffs filed in the office of the register of deeds a lien statement, which was duly recorded, claiming a lien upon all three of the lots for a balance of $1,436 due for labor and materials and extras furnished for the erection of the three houses pursuant to the contract.

The defendant assigns as error the receiving in evidence the lien statement and the record thereof, the finding that the three houses were erected under one contract, and the conclusion of law to the effect that the unpaid balance was a lien on the premises. The principal question raised by these assignments of error is whether the three houses were erected under "one general contract," as that term is used in G. S. 1894, § 6235, which provides, in effect, that whenever any contractor furnishes labor and materials and erects two or more buildings on contiguous lots pursuant to the purposes of one general contract with the owner, it is not necessary to file a separate statement upon each building nor to apportion the amount of the entire lien between the several buildings. The three houses were all built under one contract. The contract was absolute as to the first two houses and the contract price was fixed at $1,641. Upon the margin of the contract, and as a part of it, were written these words:

"The right of the owner is reserved to add to the contract house number 3, at the same price pro rata as herein stipulated for the two, any time within thirty days from above date."

The owner, the defendant Salter, by his architect orally notified the plaintiffs to build the third house within the time limited, and they proceeded to do so, as already stated. There was no other contract as to house 3.

The evidence fully sustains the finding of the trial court that all three houses were built under one contract. The only difference in the terms of the contract as to the several houses was that as to the first two the contract was absolute, and as to the last one conditional, — that is, it was not to be erected unless the defendant elected to have it added to the contract; when he so elected, the contract was absolute as to all of the...