Lamoreaux v. Andersch

• Decision Date: 29 January 1915
• Docket Number: No. 18938[167].,18938[167].
• Citation: 128 Minn. 261,150 N.W. 908
• Parties: LAMOREAUX et al. v. ANDERSCH et al.
• Court: Minnesota Supreme Court

128 Minn. 261

150 N.W. 908

LAMOREAUX et al.

v.ANDERSCH et al.

No. 18938[167].

Supreme Court of Minnesota.

Jan. 29, 1915.

Appeal from District Court, Hennepin County; Daniel Fish, Judge.

Action by Lowell A. Lamoreaux and others against Louis Andersch and others. From judgment for plaintiffs, defendants appeal. Affirmed.

Syllabus by the Court

An architect who, under contract with the owner of land, furnishes plans and specifications for the construction of a building thereon is entitled to a lien upon the building thereon upon which it is constructed, though he does not supervise the construction.

If the owner, after the plans are furnished, of his own volition and without fault of the architect, abandons the construction of a building on the land, the architect has a lien on the land. An actual improvement is not necessary to a lien.

The contract between the architect and the owner was that the former should furnish plans and specifications for and supervise the construction of the building for an entire consideration, based on a percentage of the total cost. The lien statement was filed within 90 days after the owner repudiated the contract. It is held that such statement was filed in time, though the last work on the plans and specifications was done more than 90 days prior thereto.

Lancaster, Simpson & Purdy and James E. Dorsey, all of Minneapolis, for appellants.

Lind, Ueland & Jerome, of Minneapolis, for respondents.

BUNN, J.

This is an action to foreclose a mechanic's lien. There was a trial before the court without a jury and a decision for plaintiffs. Defendants appeal from the judgment entered on the decision.

The facts are as follows: Plaintiffs are architects. In September, 1912, defendants Louis and Julius Andersch and Charles Andersch, since deceased, entered into a contract with plaintiffs by the terms of which plaintiffs agreed to make plans, with details and specifications, for a building to be erected on two lots in Minneapolis owned by defendants, and to superintend the construction of the building. Plaintiffs were to receive as compensation for their services a sum equal to 4 per cent. of the cost of the building. The plans and specifications were prepared, submitted to contractors for bids, and delivered, with the bids received, to defendants in November, 1912. Prior to this time defendants had a survey of the land made and furnished to plaintiffs for their use in preparing the plans, and tore down an old barn that was standing on the lots. The plans and specifications were retained by defendants without objection, but they did not accept or reject the bids, or take any action in the matter until May 27, 1913, when they repudiated the contract with plaintiffs, and abandoned the project of constructing a building on the lots. Prior to this time nothing was done either towards the construction of the building or to discharge plaintiffs as architects or release them from their obligation to perform their contract.

After the bids were received plaintiffs prepared details. The last work on these was done March 27, 1913. On May 23, 1913, one of the plaintiffs devoted some time to an examination of the details, which had been drawn by an employé, to ascertain whether they had been properly prepared. The lien statement was filed August 18, 1913.

The plaintiffs entitled to a lien notwithstanding (1) Are plaintiffs entitled to a lien notwithstanding there was no improvement on the land? (2) Was the lien statement filed in time? (3) In case it be held there is no lien, was it error to refuse defendants' demand for a jury trial on the issue of their liability for breach of contract?

[1] 1. The first question is one of doubt and difficulty, and the conclusion reached is not the unanimous opinion of the court. It appears conclusively, we think, that there was no improvement on the land. The removal of the old barn by defendants and the making of the survey cannot be considered as an improvement. This was done entirely independently of the contract with plaintiffs, and clearly plaintiffs contributed nothing to this work. Architects are entitled to liens for services in preparing plans and superintending construction where there is an actual improvement to which their work contributes. Knight v. Norris, 13 Minn. 473 (Gil. 438); Gardner v. Leck, 52 Minn. 522, 54 N. W. 746;Wentworth v. Tubbs, 53 Minn. 388, 55 N. W. 543;Wanganstein v. Jones, 61 Minn. 262, 63 N. W. 717. In each of the cases cited, there was an actual improvement, and in each the architect not only made the plans, but supervised the construction. It has been held that an architect's services in preparing plans only are not lienable, but we confess our inability to see why plans and specifications do not as much contribute to the construction of a building as does the supervision by the architect, and well-considered cases so hold. Henry & Coatsworth Co. v. Halter, 58 Neb. 685, 79 N. W. 616;Parsons v. Brown, 97 Iowa, 699, 66 N. W. 880;Fitzgerald v. Walsh, 107 Wis. 92, 82 N. W. 717,81 Am. St. Rep. 824;Freeman v. Rinaker, 185 Ill. 172, 56 N. E. 1055;Ehlers v. Wannack, 118 Cal. 310, 50 Pac. 433; Field v. Consolidated Mineral Water Co., 25 R. I. 319, 55 Atl. 757,105 Am. St. Rep. 895. We think plaintiffs would have been entitled to a lien if their plans had been used in the construction of a building on the premises.

Is this right to a lien lost when the owner, through no fault of the architect, does not use the plans or make the contemplated improvement? Liberal construction of the lien statute is the settled policy in his state. But the right to a lien in any case is still wholly dependent upon the language of the statute. There is no lien except where the statute gives one. The answer to the question, therefore, depends upon the words of the statute, liberally construed to further the object of its enactment.

G. S. 1913, § 7020, the first section in the chapter relating to liens for labor and material, and the one giving the lien, provides in substance that:

‘Whoever contributes to the improvement of real estate by performing labor or furnishing skill for the erection of a building thereon, shall have a lien upon such improvement, and upon the land on which it is situated, for the price or value of such contribution.’

By section 7021, a lien extends to the interest of the owner in ‘the premises improveed.’ By section 7022, a person contributing labor, skill, materials, or machinery for the construction or alteration or repair of railway lines, etc., is given a lien upon ‘the line so improved.’ Section 7023, providing when a lien shall attach, says that as against the owner, it shall take effect ‘from the time the first item of material or labor is furnished upon the premises for the beginning of the improvement,’ that as against a bona fide purchaser, mortgagee, or incumbrancer, no lien shall attach ‘prior to the actual and visible beginning of the improvement on the ground,’ except where a contractor files in the proper office a brief statement of the nature of his contract, such statement is notice of his lien for the contract a price or value ‘of all contributions to such improvement thereafter made by him.’ Section 7024 speaks of liens attaching ‘by reason of * * * improvements,’ of ‘liens for improvements,’ and provides for a notice to be served by an owner upon persons doing work or ‘otherwise contributing to such improvement,’ when improvements are made upon his land without his authority. Section 7026 requires the lien statement to be filed in the county ‘in which the improved premises are situated,’ and provides that it shall set forth, among other things, ‘for what improvement’ the labor, etc., was done or supplied. Section 7027 provides that a lienholder who has contributed to the erection, etc., of two or more buildings or improvements situated upon one lot or upon adjoining lots, under one contract with the owner, may file one statement for his entire claim, embracing the entire area ‘ so improved,’ or may apportion his demand between the several ‘ improvements,’ and assert a lien for a proportionate part upon each, and upon the ground appurtenant to each. Section 7028 requires an action to enforce the lien to be brought in the county in which the ‘ improved premises' are situated. By section 7029, the summons is required to contain a brief description ‘of the improvement out of which the lien arose.’

It must be conceded that the lien statute, if construed literally, does not expressly give a lien when no improvement is begun on the ground. Can we, by liberality of construction, nevertheless say that a lien may attach under such circumstances? To answer this question correctly, a review of our past decisions is necessary. We have no case where a lien has been granted when there was no tangible improvement on the ground. In Smith v. Barnes, 38 Minn. 240, 36 N. W. 346, the lien claimant supplied material for a building to be erected on lot 5. This material was diverted to lot 6, and no building was constructed on lot 5. It was held that, as against a mortgagee, a lien could not be enforced against lot 5. The court said that the statute ‘seems to contemplate that there must be or have been a building situated upon the land against which the decree is demanded.’ In Burns v. Sewell, 48 Minn. 425, 51 N. W. 224, Lumber was furnished on the ground, but not used in the building. A lien was allowed, and the case distinguished from Smith v. Barnes, in that there was no building in that case. There are a number of cases in this state where liens have been allowed for material furnished for but not used in the construction, but in each case there was an actual improvement. Howes v. Reliance Wireworks Co., 46 Minn. 44, 48 N. W. 448;Hickey v. Collom, 47 Minn. 565, 50 N. W. 918; Burns v. Sewell, supra; Combination Steel & Iron Co. v. St. Paul City Ry. Co., 52 Minn. 203, 53 N. W. 1144;John Paul Lumber Co. v. Hormel, 61 Minn. 303,...