Lewis v. Martin, 70--409

• Decision Date: 21 December 1971
• Docket Number: No. 70--409,70--409
• Citation: 492 P.2d 877,30 Colo.App. 342
• Parties: Jess LEWIS and John Rush, Plaintiffs-Appellees, v. Carl MARTIN, dba Tri-State Construction Company, et al., Defendants-Appellees, Louis Miller and Elizabeth Miller, Defendants-Appellants. . I
• Court: Colorado Court of Appeals

Page 877

492 P.2d 877

30 Colo.App. 342

Jess LEWIS and John Rush, Plaintiffs-Appellees, v. Carl MARTIN, dba Tri-State Construction Company, et al Defendants-Appellees Louis Miller and Elizabeth Miller, Defendants-Appellants.

No. 70--409.

Colorado Court of Appeals, Div. I.

Dec. 21, 1971.

Mellman, Mellman & Thorn, P.C., Gerald N. Mellman, Denver, for plaintiffs-appellees.

Jon K. Mulford, Granby, for defendants-appellees.

Edward A. Jersin, Denver, for defendants-appellants.

PIERCE, Judge.

This is an appeal of an action to foreclose mechanics' liens. The record indicates that Martin, d/b/a Tri-State Construction Co., hereinafter referred to as the 'general contractor' or by name, was hired by the Millers, hereinafter referred to as the 'owners' or by name, to construct a shell cabin on property owned by the Millers. Lewis and Rush, hereinafter referred to as the 'carpenters' were employees of the general contractor, Martin. Park Lumber Company and Certified Reddi-Mix, Inc., hereinafter referred to as the 'materialmen' or by name, furnished lumber and other materials for use in the construction of the Miller home.

The carpenters filed mechanics' liens for wages due for their work on the building. Mechanics' liens were also filed by the materialmen for materials sold to the general contractor for use in the Miller home. On November 15, 1968, the carpenters brought suit to establish the foreclose their mechanics' liens upon the Miller property. On February 27, 1969, the entire building collapsed. The materialmen thereafter intervened in the action and sought to foreclose their mechanics' liens. The Millers answered and alleged that the materials incorporated into their premises did not enhance the value of their property. They prayed for a judgment against the carpenters and the general contractor on the ground that the construction contract had not been performed and that the cabin was erected in such an unskillful and negligent manner that it collapsed, resulting in damages to the owners in the amount of $6,000.

Upon trial to court, the general contractor, Martin, did not appear and default judgment was entered against him in favor of the Millers and the materialmen. In its findings of fact and conclusions of law, the trial court found that the construction of the building by the carpenters was faulty, unsatisfactory, and not in accordance with the generally accepted standards of construction in the area. It further found that the collapse completely wrecked the building and that the cost of cleaning up and constructing a new building would be at least equal to or greater in expense than the original contract price. The trial court also found that the materialmen furnished materials at Martin's request; these materials were either delivered Martin or his employees or to the Miller job site; and that they had been incorporated into the house being built on the Miller property.

Based upon these findings, the trial court determined that the carpenters were not entitled to a lien and dismissed their complaint. No appeal was taken from this order.

The trial court further determined that the liens of Park Lumber Company and Certified Reddi-Mix were valid and subsisting liens, and also determined that Park Lumber Company was entitled to a personal judgment against Louis Miller. It is from these judgments that the Millers appeal.

I.

First, the owners claim that because of the collapse of the house, the materials in the structure were worthless and did not constitute an improvement to the property, and thus it was error for the trial court to find the materialmen's mechanics' liens valid as against their land. They further assert that an indebtedness is a prerequisite to the establishment of a valid mechanic's lien and that due to the destruction of the house no such indebtedness existed here.

The owners' contention that no indebtedness existed is not persuasive. They assert that Bishop v. Moore, 137 Colo. 263, 323 P.2d 897 supports their position. In that case, our Supreme Court stated:

'A prime requisite to the establishment of a valid mechanic's lien is that an indebtedness exists in favor of the claimant for labor or materials. Where the labor or materials furnished are in breach of the contract and so unsatisfactory as to require the either or both be redone at equal or greater expense, clearly they are without value to the property owner and do not constitute an indebtedness.'

Bishop, however, has no application here. There, a mechanic's lien was claimed for labor where the work of the claimant himself was specifically found to be worthless. In the case at hand, we are dealing with the lien of materialmen for materials supplied for the construction of this building. There has been neither claim nor proof that the materials provided at the request of the general contractor were either defective, unsuitable, or not required for the building. There is no allegation of any wrongdoing on the part of the materialmen.

Under C.R.S.1963, 86--3--1 et seq., the lien of a materialman is independent of the contract between the owner and the principal contractor. Armour & Co. v. McPhee & McGinnity Co., 85 Colo. 262, 275 P. 12; See 2A E. King Colorado Practice § 2421 (2d ed. 1970). It is the general rule that, under a statute providing for such an independent materialman's lien, defective work done by the general contractor or his employees, which results in damage or a lack of benefit to the owners, does not deprive a materialman of his right to a lien. Halsey v. Waukesha Springs Sanitarium Co., 125 Wis. 311, 104 N.W. 94; W. H. Pipkorn Co. v. Tratnik, 161 Wis. 91, 152 N.W. 141; See Kobayashi v. Meehleis Steel Co., 28 Colo.App. 327, 472 P.2d 724; 53 Am.Jur. 2d Mechanic's Liens § 54; Annot., 16 A.L.R. 981; 57 C.J.S. Mechanics' Liens § 112. The trial court's determination that the materialmen's liens were valid is therefore affirmed.

II.

The owners next assert that the trial court erred in determining that Louis Miller had ratified the account of Park Lumber Company with the general contractor and in entering a personal judgment against him in favor of Park Lumber Company. As their first ground for this error, they assert that the entry of a personal judgment against him was outside the scope of the pretrial order entered in this case. C.R.C.P. 16(c). We disagree. The pretrial order entered herein broadly covered the matters to be determined at trial and we do not think that it bears such a narrow and exclusive reading. The trial court, in its order denying plaintiff's motion for new trial, clearly stated that 'The question of whether defendants Miller were personally liable to Park Lumber Company was included in and contemplated in the pretrial order. Also, it was recognized as an issue by all counsel and by the court, . . ..'...