Johnson v. Starrett
| Decision Date | 09 October 1914 |
| Docket Number | 18,771 - (246) |
| Citation | 149 N.W. 6,127 Minn. 138 |
| Parties | ALBERT A. JOHNSON v. LEWIS H. STARRETT and Others |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county against Lewis H Starrett and Abraham L. Cornman, doing business as Starrett & Cornman, and Hennepin Avenue Methodist Episcopal Church, to foreclose a lien for $451.12 for materials furnished defendant corporation and by a sale of the premises therefor. The Schurmeier Wagon Co. and others intervened. The case was tried before Hale, J., who denied the motion of defendant church for the dismissal of the intervener's claims, and made findings and ordered judgment in favor of plaintiff and the several interveners, granting each of them a lien and directing a sale of the property to pay the same. From an order denying the motion of defendant Hennepin Avenue Methodist Episcopal Church for the vacation of the findings and the substitution of others in their stead, or for a new trial, defendant Hennepin Avenue Methodist Episcopal Church appealed. Affirmed as to one intervener. Reversed with directions as to the other interveners.
Mechanic's lien.
1. Coal and gasolene for generation of power, dynamite for blasting lubricant, lighting materials and supplies, and materials for erection of a tool-house, furnished excavating contractors, held lienable under G.S. 1913, § 7020, as being contributions to the improvement of defendant's realty. Supplies for and repairs and parts of the excavating machinery, held not lienable, being merely contributions to the personal property of the contractors.
Mechanic's lien.
2. Materials furnished in good faith for the improvement of realty may be lienable though not actually used in the work.
L. K. Eaton and Willard R. Cray, for appellant.
George W. Hanson, Norton M. Cross, W. W. Todd, James C. Melville and H. C. Mackall, for respondents.
The trial court held that plaintiff and the interveners were all entitled to liens on defendant's realty for materials furnished, for the full amounts claimed. Defendant appealed from an order denying a new trial. The undisputed facts are:
Defendant, being the owner of a lot in Minneapolis, contracted on December 4, 1912, with Starrett & Cornman, for its excavation by them for the purpose of erecting a church. The terms of the contract do not appear. Between that date and March 5, 1913, the contractors were engaged in doing the excavating. The work was done with a portable steam-power excavating machine known as a whirly, which was owned by the contractors and operated day and night. The earth, as excavated and lifted by the machine, was loaded upon motor trucks and carried away. Plaintiff furnished the contractors the coal used in generating the steam-power for the whirly, and intervener Manhattan Oil & Linseed Co. sold the gasolene used in the motor trucks; both of these fuels being sold to the contractors for the purposes stated and delivered on the premises. Intervener Gardner Hardware Co. sold them materials of the value and for the purposes next stated, namely, $9.81, for lumber used in building an office or toolhouse on defendant's premises; materials and supplies used in connection with the light plant of the machine, $19.25; dynamite, $173.50; supplies and repairs for and parts of the power engine, $119.51; materials for the dump platform of the whirly, $6.99; and supplies, materials, and parts of the machine, $89.46. Intervener Schurmeier Wagon Co. furnished the contractors forgings, iron work, and labor in repairing the machine, of the value of $94.57. Intervener W. K. Morrison & Co. furnished them materials for the like purpose, to the amount of $42.56, and also $3 worth of rope grease to be used in lubricating the pulleys. After the excavation was completed the machine, with its appurtenances, was removed from the premises. One-half the ground excavated consisted of clay, which the contractors were unable advantageously to blast or remove with shovel and pick, and which was more economically removable by use of the machine.
The sole question involved is: Were the several items mentioned lienable? Defendant, relying largely on decisions from other jurisdictions, insists upon a negative answer as to all. Upon the questions involved, however, foreign decisions, while instructive, are not of their usual weight; for, aside from the fact that this court has already determined some of the questions decided, the statutes considered are not alike and the rules of statutory construction and policy affecting the foundation of the determinations in some of the cases are at variance with our holdings. The opinions in Indiana Massachusetts, Pennsylvania, and California, are notable in these regards. The Indiana statute is not given a liberal construction as being remedial. Cincinnati, R. & M. v. Shera, 36 Ind.App. 315, 73 N.E. 293. The Pennsylvania court regards mechanic's lien laws as class legislation, the scope of which should not be unnecessarily enlarged by too liberal construction. Oppenheimer v. Morrell, 118 Pa. St. 189, 12 A. 307. Massachusetts and California, and also Pennsylvania, seem to be committed to the doctrine that liens cannot be allowed for materials incidentally promoting the construction of buildings, but only for such as enter into the construction and become a part of the structure. For example, their courts exclude forms for holding concrete in place during process of building and temporary scaffolding. But Massachusetts nevertheless awards a lien for gunpowder used in building an aqueduct. Geo. H. Sampson Co. v. Com. 202 Mass. 326, 86 N.E. 911. And California reaches the same conclusion regarding oil furnished for and applied on the threads of joints of pipe used in the structure, and also for soapstone used as a lubricant in order to facilitate the pulling of electric wires through the pipes in the building, both of which obviously do not remain as a part of the permanent structure. Pacific Sash & Door Co. v. Dumiller, 162 Cal. 664, 124 P. 230. California, likewise, in accord with the great weight of authority ), holds explosives lienable. California Powder Works v. Blue Tent, Consol. Hydraulic Gold Mines, 22 P. 391, 3 Cal. Un. Cas. 145; Giant Powder Co. v. San Diego Flume Co. 78 Cal. 193, 20 P. 419. Wisconsin, adhering to the doctrine of liberal construction, holds that materials used directly upon the work or structure and instrumental in producing the final result, are lienable if actually consumed in the use, though not physically incorporated therein, but apparently excludes coal used in portable engines, and oil used in lubricating building machinery. Barker & Stewart Lumber Co. v. Marathon Paper Mills Co. 146 Wis. 12, 130 N.W. 866. On the other hand, in New York, Tennessee, Kentucky, Missouri and Kansas, a much more liberal view is taken. See Schaghticoke Powder Co. v....
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