Martin Tire & Rubber Co. v. Kelly Tire & Rubber Co.

• Decision Date: 27 July 1923
• Citation: 122 A. 102,99 Conn. 396
• Parties: MARTIN TIRE & RUBBER CO. v. KELLY TIRE & RUBBER CO. APPLICATION OF CHARLES R. HEDDEN CO.
• Court: Connecticut Supreme Court

122 A. 102

99 Conn. 396

MARTIN TIRE & RUBBER CO. v. KELLY TIRE & RUBBER CO.

APPLICATION OF CHARLES R. HEDDEN CO.

Supreme Court of Errors of Connecticut.

July 27, 1923

Appeal from Superior Court, New Haven County; John W. Banks, Judge.

Receivership proceedings by the Martin Tire & Rubber Company against the Kelly Tire & Rubber Company. On application of the Charles R Hedden Company for allowance of a preferred claim. From judgment for applicant, the receivers appeal. Affirmed.

The finding recites the following facts: On May 23, 1921, the Charles R. Hedden Company, petitioner herein, filed its mechanics' lien on land and a building of the defendant. The Kelly Tire & Rubber Company, which recites that the petitioner ceased furnishing material and rendering services on the building on April 6, 1921. On May 24, 1921, a temporary receiver was appointed by the superior court, and on June 27th two permanent receivers were appointed of the defendant. The petitioner furnished materials and rendered services in the erection and construction of a factory building for the defendant under a written contract between it and the petitioner. The receivers and the petitioner agreed in settlement upon the sum of $41,000 as the amount still due the petitioner under its contract, and which sum was a part of the claim which was secured by its mechanics' lien. The petitioner subsequently released the lien, reserving its priority thereunder to the fund which should be realized from the sale of the premises of the Kelly Company and thereafter presented its claim as a preferred claim. The petitioner between March 7, 1921, and April 6, 1921, expended for services in the completion and construction of this contract $1,156.79; of this $151.75 was for a pay roll, on March 9, 1921, for engineer, carpenter foreman, tool boy, bricklayer, and two laborers. After March 9, 1921, no material was furnished, and the only labor furnished after that date was the services of a carpenter on March 25, 1921, and of a civil engineer, the petitioner's superintendent of construction, who was employed up to and including April 6, 1921, in cleaning up and making alterations and getting petitioner's equipment in condition for removal and removing it from the job as required by the contract. The services of the superintendent were rendered in completion of the contract for construction of the building and were charged to the construction contract by the petitioner. No payments on account of the contract have been made since March 7, 1921.

Albert H. Barclay, of New Haven, for appellants.

Henry F. Parmelee and Arthur W. Chambers, both of New Haven, for appellee.

WHEELER, C.J. (after stating the facts as above).

Defendant claims that the facts stated in paragraphs 8 and 11 of the finding should be corrected because they are inconsistent and found without evidence. The petitioner, on the other hand, says that these are findings of fact made upon undisputed evidence. The statement, in paragraph 8, that the petitioner continued to furnish services in the completion of the contract for the construction of the building, we regard as a mixed conclusion of law and fact, that the conclusion of fact must have been found from the other facts in the finding, and hence the conclusion is reviewable. The statement in paragraph 11, that the services of the superintendent were rendered in completion of the contract for the construction of the building, is the same sort of conclusion. Both of these conclusions depend upon the conclusion to be drawn from the subordinate facts, together with a construction of the building contract, and the application of the subordinate facts to the contract so construed.

The defendant rests its appeal upon what it holds to be two principles of our law of mechanics' liens which make the lien of the petitioner invalid: First, that since the building had been substantially completed on March 9th the lien began to run from that date, and hence the 60 days' period in which the lien could be filed had expired; second, that the only services detailed in the finding rendered after March 9th were for the civil engineer, who was the superintendent on the job, and for a carpenter for one day, and did not entitle the petitioner to a mechanics' lien. The defendant misconceives the proper application of the rule of substantial completion in determining the time from which the 60-day period should be computed. The period for filing the lien under our statute " for material furnished or services rendered in the construction, raising, removal or repairs of any building" will be computed, ordinarily, from the date of the last item of material furnished or services rendered. The rule is one to be applied fairly to both the lienor and the owner. If, after the work is substantially done, the claimant for the material furnished or services rendered shall unreasonably delay the completion of the work, the date of beginning of the 60-day period will be taken as the date when the work was substantially done. No trivial or inconsequential service or work done after the substantial completion of the building will extend the time for claiming the lien or revive an expired lien when an unreasonable period has elapsed since the substantial completion. If the article furnished or the services rendered be trivial, but be required by the terms of the contract of building, this fact will be taken into consideration in determining whether the elapsed period be unreasonable or not. And--

" Where a service is performed or material furnished at the request of the owner, it will extend the time for claiming a lien or will revive an expired lien, as to a contract * * * substantially completed." 35 L.R.A. (N. S.) 904, note.

Thus in Nichols v. Culver, 51 Conn. 177, it is held that trivial work done or material furnished will be sufficient to extend the time for filing the lien if done at the request of the owner, and not for the mere purpose of saving his lien.

We have held in Flint v. Raymond, 41 Conn. 510, and Sanford v. Frost, 41 Conn. 617, that there must be no unreasonable delay in completing work which has been substantially done and that--

" Work done after such delay will not be considered in fixing the sixty days allowed for recording the lien."

In the first of these cases the delay was nine...