Kremer v. Walton

• Decision Date: 08 February 1895
• Citation: 39 P. 374,11 Wash. 120
• Parties: KREMER ET AL. v. WALTON ET AL.
• Court: Washington Supreme Court

39 P. 374

11 Wash. 120

KREMER ET AL. v. WALTON ET AL.

Supreme Court of Washington

February 8, 1895

Appeal from superior court, Yakima county; Carroll B. Graves, Judge.

Action by Scott Kremer and others against W. Walton and others to enforce mechanics' liens. From a judgment refusing to enforce the liens, plaintiffs and defendants Leander Smith and another appeal. Reversed.

Frank H. Rudkin, Jones & Newman, and Mackinnon & Murane, for appellants.

Whitson & Parker and D. H. Carey, for respondents.

HOYT C.J.

This action was brought to foreclose the liens of certain mechanics and material men who had performed labor and furnished material in the erection of a certain brick building upon property which at the time belonged to J. M Ashton. The work was done and materials furnished at the instance of one O. W. Johnson. His relations to the property and to Ashton, the owner, were evidenced by certain correspondence by mail and telegraph which had been had between him and said Ashton. In his testimony upon the trial said Ashton made it appear that he had no knowledge of the fact that said Johnson had entered upon the erection of the building until after the labor and materials for which the liens were claimed had been furnished. Such testimony is conclusive, so far as the understanding of said Ashton was concerned, but can have little weight in determining the contract relations between him and said Johnson, for the reason that such relations must be determined by the construction of the correspondence above referred to regardless of what may have been the intention of the owner. From such correspondence we are forced to the conclusion that said Johnson and those dealing with him had a right to assume that said Ashton had consented to the erection of the building by said Johnson, in pursuance of the terms of a letter written by said Ashton to said Johnson, which was in substantially the following form: "Dear Sir: Referring to our conversation here of this date, I am willing to make you a lease of my lot adjoining the premises now occupied by you at North Yakima upon the following terms and conditions You to construct thereon, under my supervision and subject to my approval, a one-story brick building, conformable to the ordinances of said city; and, in addition thereto, the side nearest the depot to be at least twenty inches in thickness the rear wall to be at least twelve inches, and the front wall to be at least twenty inches, said front wall to be built of or faced with pressed brick of first-class quality, so as to give the same a first-class and finished appearance, it being understood that the northeast wall, or that furthest away from the depot, shall be arranged by a party-wall contract between myself and the owner of the building you are now occupying. This contract shall be so as to give me the right to insert joist into said wall, and to make me owner of one-half of his wall for the entire height, so that, in the event of my wanting to add an additional story (which is the object of having the twenty-inch wall at the side and front of the building hereby contemplated), I will have the benefit by this party-wall contract of the wall of his second story when...