Mawson-Peterson Lumber Co. v. Sprinkle

• Decision Date: 10 August 1943
• Docket Number: 2249
• Citation: 140 P.2d 588,59 Wyo. 334
• Parties: MAWSON-PETERSON LUMBER CO., a Corporation, Plaintiff and Respondent, v. GOLIE B. SPRINKLE, Defendant and Appellant. MONTGOMERY WARD & CO., Cross-Petitioner and Respondent
• Court: Wyoming Supreme Court

140 P.2d 588

59 Wyo. 334

MAWSON-PETERSON LUMBER CO., a Corporation, Plaintiff and Respondent, v. GOLIE B. SPRINKLE, Defendant and Appellant.

MONTGOMERY WARD & CO., Cross-Petitioner and Respondent

No. 2249

Supreme Court of Wyoming

August 10, 1943

Appeal from District Court, Laramie County; Sam M. Thompson, Judge.

Action by Mawson-Peterson Lumber Company against Golie B. Sprinkle to foreclose a mechanic's lien, wherein Montgomery Ward &amp Company, Inc., intervened as cross-petitioner to foreclose a mechanic's lien. From a decree foreclosing the liens, the defendant appeals.

Judgment in favor of the plaintiff modified and as modified affirmed and judgment in favor of the intervenor reversed and remanded with directions.

Reversed and remanded.

For defendant and appellant, there was a brief and oral argument by Carleton A. Lathrop of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR APPELLANT

There was an express waiver of the benefits of the Mechanic's Lien Law: Norton Lumber Company v. Association, 64 Mo.App. 377; Sanders etc. Co. v. Barr, 76 Mo.App 380; Keller v. Insurance Co., 95 Mo.App. 629; Hammond Hotel and Improvement Company v. Williams (Ind.) 176 N.E. 154. A mere breach of a contract will not revive prior rights that have been waived: Pressed Brick Co. v. Barr, 76 Mo.App. 380; Alguire v. Barrow et al. (New York) 272 N.Y.S. 308. A lien cannot be established for materials or labor against property broader than the descriptions contained in the Lien Statement Krah v. Weidlich, 55 Mo.App. 536; Boland v. Webster, 126 Mo. Appeals 591, 105 S.W. 34; Plumbing Company v. Glennon (Mo.) 287 S.W. 824. In the Lien Statement appears an item called "cash advanced for loan application, $ 10.00" and articles of personal property not attached to the realty; furnace, laundry tray, window shades, bit, file, motor, pulley, and stove parts. These are not lienable. Haeussler v. Glass Co., 52 Mo. 452; Banner Iron Works v. Etna Iron Works (Mo.) 122 S.W. 762; Neistrell v. Reach, 56 Mo. Appeals 243. Rights to lien terminated, and could not be revived by sale five weeks thereafter of stove parts not attached in any way to the realty: Schulenburg v. Vroonman, 7 Mo. Appeals 133; Naughton Company v. Nicholson, 97 Mo. Appeals 332, 71 S.W. 64; Darlington v. Eldridge, 88 Mo. Appeals 525.

For plaintiff and respondent, there was a brief by Allen A. Pearson of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

There is no waiver of the lien law under the circumstances of this case: Saginaw Lumber Co. v. Wilkinson et al., 254 N.W. 241, 242 (S. C. Mich.) 1934; Compton v. Jennings Lumber Co., 295 S.W. 309 (CCA Tex. 1927); Phoenix Mfg. Co. v. McCormick Harvesting Machine Co., 111 Wis. 570, 573, 87 N.W. 458; Carl Miller Lumber Co. v. Meyer, 183 Wis. 360, 365, 196 N.W. 840. Section 66-508, W. R. S. 1931 provides that the lien statement shall contain "A true description of all the property or so near as to identify the same upon which said lien is intended to apply." This provision was fully complied with: Independent Plumbing & Heating Co. v. Glennon et al., 287 S.W. 824, 825; Shannon Co. v. Wurlitzer et al., 186 N.E. 879, 882; MacPherson v. Crum, 174 N.W. 751, 753; Joplin Cement Co. et al. v. Greene County Building & Loan Ass'n et al., 74 S.W.2d 250, 252.

For cross-petitioner and respondent, there was a brief and oral argument by Harry B. Henderson, Jr., of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR CROSS-PETITIONER

One test of the true description of property seems to be whether it will enable one familiar with the locality to identify the property upon which the lien is intended to be claimed with reasonable certainty. Another test is that no other property answers the description and the owner named owns no other property in the locality: 40 C. J. 219 to 224; National Lumber Company v. Bowman (Iowa) 42 N.W. 557; Pacific Lumber Company v. Watters (Colo.) 219 P. 782; McPherson v. Crum (N. D.) 174 N.W. 751; Schulenburg, 7 Mo.App. 133.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This is an action brought by the Mawson-Peterson Lumber Company against Golie B. Sprinkle, defendant, to foreclose a mechanics' lien on Lots 6, 7, and 8 of Block 10, Kelley's Addition to the City of Cheyenne, Wyoming. Montgomery Ward & Company intervened in the action as cross-petitioner and sought to foreclose a mechanics' lien against the same defendant, Golie B. Sprinkle, filed on Lot 6 above mentioned. The Court entered a decree foreclosing these liens both in favor of the plaintiff respondent company as well as the cross-petitioner. From that decree, the defendant Sprinkle has appealed.

I. It is necessary to consider separately the controversy with the lumber company and Montgomery Ward & Company, respectively, and we shall proceed and first consider the controversy with respect to the claim of the lumber company above mentioned.

(1) The contention is made by the defendant that the lumber company, by agreement between the parties, waived the filing of a mechanics' lien and agreed to rely upon the proceeds of a loan which Sprinkle was to obtain from the Federal Housing Administration. It appears that Sprinkle applied for a loan on August 25, 1938 in the sum of $ 3200. Subsequently, during 1939, it appears that the Federal Housing Administration agreed to allow the loan to the extent of $ 1900. That was not sufficient to pay for all of the claims in connection with the construction of Sprinkle's house, so he proceeded on October 17, 1939 to file a voluntary petition in bankruptcy and he was thereafter, about October 20, 1939, adjudged to be a bankrupt. After the filing of the petition in bankruptcy the Federal Housing Administration informed the defendant that on account of such bankruptcy it would not make any loan.

The defendant Sprinkle did not testify that the lumber company agreed to waive the filing of a mechanics' lien. All he stated was that he told Mr. Singer, the manager of the plaintiff lumber company, "I says to Mr. Singer, your money comes from this loan and I would suggest you call them up and see what they tell you." Defendant, however, relies upon the testimony of Mr. Singer himself which is as follows:

Q. "Did you or the plaintiff company apply for the loan?"

A. "No. Mr. Sprinkle applied for the loan."

Q. "What was the idea as to the loan?"

A. "To secure money to pay for the materials."

Q. "Now, was there any agreement at that time that you would look exclusively to the proceeds of the loan for your payment?"

A. "Yes."

Q. "You did not expect to be paid unless the loan was made?"

(Question objected to and objection sustained.)

Q. "What was the agreement as to the loan between you and Mr. Sprinkle?"

A. "That we was to help him secure a loan, and that the loan money was to pay for the materials furnished by us."

Q. "Did you know at that time whether a loan could be obtained?"

A. "No, I did not."

It is stated in 40 C. J. 313 that "what constitutes a waiver is essentially a question of intention; in order to establish it the intention to waive must clearly appear. * * * In the absence of language indicating a purpose under no circumstances to claim a lien it is not to be supposed that the contractor intended absolutely to relinquish his right." It may be noted that no mention whatever was made, either on the part of the defendant or on the part of Mr. Singer, in regard to the waiver of a lien. At that time it was not known, as testified by Mr. Singer, whether or not the loan would be obtained, and he probably meant by his answer to one of the questions that the proceeds of the loan should be exclusively used for the purpose of paying for the materials to be furnished to the defendant. Not a single reason is indicated in the record why the lumber company should have waived the filing of a mechanics' lien. If there had been any such agreement, the defendant could have testified to that effect, but he did not do so; he makes no claim in his testimony that any such waiver was made. We think that the one answer of Mr. Singer's was the result of a misunderstanding in the record as a whole and is far from showing clearly that the lien was waived. If, moreover, the contrary could be said to be true, the defendant lost his right to rely thereon. If it was an agreement, it was an executory one. Defendant became a voluntary bankrupt. He testified that the Federal Housing Administration refused to make any loan to him thereafter. He accordingly placed it out of his power to do what any agreement with the lumber company contemplated. It is stated in 17 C. J. S. 912 that "where one party places it out of his power to perform the other party may treat the contract as terminated at once." That the lumber company did not consider any such contract in force after the proceedings in bankruptcy is shown by the fact that soon thereafter it filed its statement of a mechanics' lien as required by the statute. See also Pacific Lumber & Timber Co., 60 Wash. 566; 111 P. 869.

(2) The plaintiff lumber company filed its lien on Lots 6, 7, and 8 of Block 10, Kelley's Addition on October 25, 1939. At that time, Kelley's Addition was not a part of the City of Cheyenne but was taken into the City by decree of February 19, 1940. Thereafter, a resurvey was made of the lots owned by the defendant and it appears that what previously were known as Lots 6, 7, and 8 became, under the resurvey, Lots 5 6, and 7. During the trial of the case, the plaintiff lumber company asked to amend its petition seeking foreclosure of the lien on the lots as so renamed and the amendment was permitted to be made. The building constructed by the defendant is located partially on Lot 5, as renamed, and partially on Lot 6, as renamed, and it is the...