Krotter & Sailors v. Pease, 33893

• Citation: 74 N.W.2d 538,161 Neb. 774
• Decision Date: 03 February 1956
• Docket Number: No. 33893,33893
• Parties: KROTTER & SAILORS, a Co-partnership, Appellant, v. Roy J. PEASE and Bernice F. Pease et al., Appellees.
• Court: Supreme Court of Nebraska

Page 538

74 N.W.2d 538

161 Neb. 774

KROTTER & SAILORS, a Co-partnership, Appellant, v. Roy J. PEASE and Bernice F. Pease et al., Appellees.

No. 33893.

Supreme Court of Nebraska.

Feb. 3, 1956.

Syllabus by the Court.

1. The right to a mechanic's lien is of statutory origin. It did not exist in common law or in equity.

2. A claimant to be entitled to the benefit of the Mechanic's Lien Act must bring himself within its terms and comply with the procedure required to perfect a lien.

3. If a claimant is within the specifications of the statute granting the right and has complied with the procedure required to perfect a lien the provisions of the statute will be liberally interpreted to accomplish the purposes of the legislation.

4. The Mechanic's Lien Act provides security exclusively for materialmen and laborers.

5. The statute providing for a lien on the premises improved in favor of one who performs labor on or furnishes material for the improvement does not extend to a person who supplies money with which the cost of the work or material is paid.

6. The right to a lien by virtue of the Mechanic's Lien Act is created immediately material is furnished or labor is performed within the provisions of the act if a claim is made therefor as required by the statute.

7. A liberal interpretation of a statute is one which seeks for and fairly and reasonably effectuates the legislative intent as to the purposes of the legislation as expressed by the language of the statute.

C. M. Bosley, Palisade, Robert C. Bosley, Hayes Center, for appellant.

D. E. Owens, Ross D. Druliner, Benkelman, Robert S. Finn, Tecumseh, Fred T. Hanson, McCook, Jack H. Hendrix, Trenton, Hines & Hines, Benkelman, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

Roy J. Pease and Bernice F. Pease, husband and wife, were the owners as joint tenants of Lot 4 in Block 5, Smith's Addition to Benkelman. They made an oral agreement about December 24, 1951, with Krotter & Sailors, a co-partnership and a retail dealer in lumber, building materials, and hardware in Benkelman, by the terms of which it was to receive the net proceeds of a loan of $8,500 made by the Tecumseh Building & Loan Association to the owners of the premises and appellant was privileged to furnish materials within the lines which it handled for the construction of the house and to pay the cost of the labor and all materials furnished for the building. It was agreed that any amount of the cost of the construction thereof in excess of the amount received by appellant from the proceeds of the loan made to the owners by the building and loan association was to be paid by the owners to appellant when the construction was completed. The loan was made and the net proceeds thereof were received by appellant and it paid the cost of all labor and materials used in the construction of the house as the bills therefor were presented to appellant at its place of business. There were materials used in the building that were not furnished by appellant and some of them were selected and purchased by the owners as it was understood they might do as a part of the agreement between them and appellant. The cost of these were paid by it. The owners selected and purchased linoleum at the store of Paul F. Morris. He delivered it to the house and installed it therein on April 10, 1952. The residence was completed and the owners moved into it April 12, 1952. The statement for the cost of the linoleum was on June 10, 1952, at the request and by direction of Roy J. Pease presented to appellant by Paul F. Morris and it was paid by appellant. That was the first time that Paul F. Morris knew that appellant was to pay the cost of the linoleum and it was the first time that the appellant knew the cost of it or had the opportunity to pay it.

Appellant filed a claim of lien under the Mechanic's Lien Act in the office of the county clerk of Dundy County October 10, 1952. The last item of the claim of lien is dated June 10, 1952, and is described as 'Paul Morris Linoleum 254.04.' It is not claimed that the linoleum was purchased, delivered to the premises, or installed therein that date. It is established without dispute that it was furnished by Paul F. Morris and installed in the house as floor covering on April 10, 1952. The last item on the claim of lien represents the payment of the cost of the linoleum by appellant to Paul F. Morris. The last material that was furnished for the house was May 19, 1952, and it consisted of four minor items at a total cost of $3.17.

A mortgage given by the owners on the premises as security for the payment of a note they owed the Security State Bank of Bird City, Kansas, was filed for record in the office of the county clerk of Dundy County February 13, 1953. The bank pleaded in this case that the claim of lien of appellant was insufficient and was not a lien on the premises because it was not filed in the office of the county clerk within 4 months of the time any labor was performed or material was furnished in the building of the house as required by the Mechanic's Lien Act of the state.

Roy J. Pease died August 12, 1954, and Bernice F. Pease became the sole owner of the premises. This case was brought by appellant to foreclose the lien it claimed on the premises by virtue of the claim of lien filed by it as above stated. The district court found upon the trial of the case that the building and loan association had a first lien and the bank had a second lien on the premises; that the last materials for the construction of the house were furnished May 19, 1952; that the linoleum mentioned in the claim of lien was furnished by Paul F. Morris and was installed and attached to the house April 10, 1952; that appellant paid the cost of the linoleum to Paul F. Morris June 10, 1952; that the payment of the cost of the linoleum was not the furnishing of material within the meaning or scope of the Mechanic's Lien Law of the state; and that the claim of lien of appellant was filed more than 4 months after anything was furnished by it for the construction of the house, and that the claim was invalid. A judgment of dismissal was rendered as to the cause of action alleged by appellant, its motion for a new trial was denied, and it has prosecuted this appeal.

The adversaries in this appeal are appellant and Security State Bank of Bird City, Kansas, hereafter referred to as appellee. The other parties to the case named in the record do not oppose the judgment of the district court in any manner or in any respect.

The claim of appellant is that it was obligated by contract with the owners of the premises improved by construction of the house to pay Paul F. Morris the cost of the linoleum he furnished and laid in the house; that the payment of this item was indistinguishable from the payment by appellant as the contract obligated him to do of other amounts for items of materials and labor required for the construction of the building; and that appellant was performing his contract obligation when he paid Paul F. Morris the cost of the linoleum June 10, 1952, and 'On that date, the plaintiff (appellant) actually furnished the linoleum under the terms of the agreement.'

Appellant to sustain the lien it claims relies exclusively upon the fact of its payment of the cost of the linoleum June 10, 1952, as a furnishing of material within the Mechanic's Lien Act notwithstanding it is undisputed that the linoleum was actually delivered to the house constructed on the premises of the owners, placed therein, and attached thereto on April 10, 1952, that the owners took possession of it on April 12, 1952, and thereafter occupied it as their home. The appellee insists that the payment of the cost of material furnished and used as a part of the construction of the house did not constitute furnishing material so as to permit the filing of a mechanic's lien within 4 months after the date of the payment because the material was furnished and placed in the building by third party 2 months before the date of the payment; that the payment of money for material used in the construction of a building does not in any event constitute the furnishing of material within the meaning of the Mechanic's Lien Act; and that the claim of lien by appellant is in any event ineffective and invalid.

The right to a mechanic's lien is of statutory origin. It did not exist at common law or in equity. A claimant of such a lien must in the first instance bring himself within the statute....