Mills v. Olsen
| Citation | 115 P. 33,43 Mont. 129 |
| Parties | MILLS v. OLSEN et al. |
| Decision Date | 29 March 1911 |
| Court | Montana Supreme Court |
Appeal from District Court, Missoula County; J. Miller Smith, Judge.
Action by F. A. Mills, as administrator of the estate of W. H Charnley, deceased, against Allen J. Olsen and Fred Johnson co-partners, doing business under the firm name of Olsen & Johnson, and J. T. Lacasse and others. Judgment for plaintiff, and defendants appeal. Modified and affirmed.
John M Evans, John J. Marquette, and John H. Tolan, for appellants.
Harry H. Parsons and Albert Besancon, for respondent.
This action was begun in Missoula county by W. H. Charnley to foreclose a mechanic's lien. After trial Charnley died and Mills, as his administrator, was substituted. In discussing the case we shall refer to Charnley as the plaintiff. The complaint alleges that the defendants Lacasse were the owners of certain lots in the city of Missoula; that they made a contract with Olsen & Johnson to erect a building thereon; that the latter contracted with Charnley to do the lathing and plastering, for which they promised to pay him at the rate of 36 cents per square yard; that Charnley agreed to furnish all materials used by him; that Olsen & Johnson should advance the money necessary to pay for materials as needed, the remainder of the contract price to be paid for as the work progressed; that, if Olsen & Johnson could purchase materials cheaper than could Charnley, they were to do so, and give him the benefit of such reduction in price; that they were to do all hoisting of materials without expense to Charnley, and were to pay him the reasonable value of all extra work; that plaintiff did 17,087 yards of plastering and performed extra work, all of which amounted to the sum of $6,432.42, no part of which has been paid except the sum of $3,740.13, leaving a balance due of $2,692.29, for which amount plaintiff filed and claims a lien upon the building. We shall refer to the defendants collectively. For answer they admitted that Olsen & Johnson entered into a contract with Charnley to lath and plaster the building at 36 cents per square yard; alleged that Charnley was to furnish all material and labor, including water necessary for mixing plaster; denied that Olsen & Johnson were to pay for hoisting materials, but admitted that plaintiff was to have the use of the elevator for that purpose. They denied the amount of work claimed to have been done by him, alleged that the total amount earned under the contract was $5,439.67, on which they had paid in cash and materials the sum of $5,960.50, being an overpayment of $520.83, for which they demand judgment by way of counterclaim. Plaintiff by reply denied all new matter in the answer. The cause was tried to the district court, sitting with a jury. A general verdict for plaintiff in the sum of $1,348 was rendered, whereupon the court made certain so-called findings of fact which, instead of being of any assistance to this court, are mostly conclusions of law and fact, and entered judgment in favor of the plaintiff for the amount of the verdict, including costs and attorney's fees. From the judgment and an order denying a new trial, defendants have appealed.
1. Appellants' first contention is that plaintiff's notice of lien is fatally defective, in that it fails to state under oath that it contains a just and true account of the amount due him after allowing all credits, as provided by section 7291, Revised Codes. As a matter of fact, the notice of lien sets forth the contract between the parties, the amount of work done, including extra work and the amount of materials furnished, in considerable detail. It gives the total amount of credits or moneys paid thereon, and states the balance claimed to be due. It also states "that items are correct." It is signed by Charnley, and bears a jurat reciting that it was subscribed and sworn to before Harry H. Parsons, a notary public. We think it is sufficient. Black v. Appolonio, 1 Mont. 342; McGlauflin v. Wormser, 28 Mont. 177, 72 P. 428; Neuman v. Grant, 36 Mont. 77, 92 P. 43; 27 Cyc. 197.
2. The second contention is that the evidence is insufficient to justify the findings, and that the amount found due the plaintiff is excessive.
At the trial Mr. Tolan, one of the defendants' attorneys, made this statement: "There is no doubt that the plaintiff will testify that the items set out in this mechanic's lien are correct; that is, with reference to the extra work and all about it." This statement was accepted by the court and opposing counsel, and makes out a prima facie case on the part of the plaintiff for the full amount claimed by him. It is assumed in the brief of appellants that the amount claimed for lathing and plastering is correct, and it is then said: "By this assumption respondent would have as the total amount earned by him under the contract and for extras and the other items charged in his lien the sum of $6,432.42." This amount, then, was fixed at the trial, and the only question is: What credits should have been allowed to the appellants? It will be noted that the jury returned a verdict for about one-half the amount claimed by Charnley. It is impossible to ascertain from the record what particular items of credit they allowed or disallowed. Had proper findings been made in that regard, great assistance would have been afforded this court. Appellants offered in evidence 16 bank checks drawn by them to the order of plaintiff and others, aggregating $3,587.35, all of which are now claimed to be undisputed credits on their account. To this statement, however, the respondent does not agree. Charnley testified that he began work about January 1, 1909, and finished about April 1st of the same year; while Olsen declared that material was delivered at the building for him in the latter part of November or 1st of December. It was agreed that plaintiff had performed work for the defendants Olsen & Johnson in the fall of 1908 on two certain other buildings known as the University Library and the Deschamps building. Charnley testified that Olsen & Johnson were indebted to him for work and labor on these other buildings, and that he gave them credit on these accounts for all moneys paid and materials furnished by them which were not credited by him upon the Lacasse building contract. This was his general statement, repeated many times during the trial. He claimed the right to so apply the payments. No effort was made to show the amounts actually due him on these other contracts.
We have never examined a less satisfactory record, and feel that a proper disposition of the case would be to remand it for a new trial, which action would be taken were it not for the fact that Charnley is dead, and such a course would perhaps result in placing his representative at a disadvantage. And we are also reluctant to order a new trial in view of the circumstance that the appellants here had it in their power to clear matters up in the court below by requesting a special verdict and specific findings of fact. It is impossible from the record to tell whether Charnley had any credit balance in his favor on either the university library building contract or the Deschamps building. He admitted receiving two car loads of cement from Olsen & Johnson. As to this cement, which he claims was 60 tons at $11 per ton, he first said that he gave credit for it on the university library work and the Deschamps building. Afterwards he said that he allowed it on "this Lacasse job contract," and still later he testified that he "did not give them credit for the amount paid for the plaster on his job in the Lacasse building." The court ruled, as we understand it, that Olsen & Johnson were entitled to credit for the whole of it in any event.
Having carefully studied the evidence, we are unable to ascertain how the court and jury arrived at the amount awarded the plaintiff. His counsel offers no figures to justify it. Consequently, it is of no significance.
We shall therefore dispose of the case in a manner which seems to us substantially correct, giving the respondent the benefit of the presumption that all contested questions of fact were decided in his favor.
Charnley testified that he had credited Olsen & Johnson with the following cash payments:
| 1. Balance overdrawn on previous contracts .. | $ 380 38 |
| 2. January 9, 1909, Cash ..................... | 250 00 |
| 3. January 6, 1909, ' ........................ | 300 00 |
| 4. January 23, 1909, ' ....................... | 600 00 |
| 5. January 30, 1909, ' ....................... | 282 50 |
| 6. February 1, 1909, ' ....................... | 200 00 |
| 7. February 13, 1909, ' ...................... | 200 00 |
| 8. February 20, 1909, ' ...................... | 200 00 |
| 9. February 27, 1909, ' ...................... | 100 00 |
| 10. April 3, 1909, ' .......................... | 135 00 |
| 11. March 22, 1909, ' ......................... | 175 00 |
| 12. January 31, 1909, amount paid plasterer ... | 53 25 |
| 13. January 2, 1909, amount paid lathers ...... | 66 60 |
| 14. *** amount paid for lime .................. | 32 50 |
| 15. April 20, 1909, check ..................... | 165 00 |
| --------- | |
| $3,140 23 |
Olsen testified that Charnley received the following cash payments:
| 1. December 16, 1908, check for freight on plaster .. | $ 210 00 |
| 2. February 26, 1909, check .......................... | 100 00 |
| 3. April 2, 1909, ' .................................. | 135 00 |
| 4. January 2, 1909, ' ................................ | 50 00 |
| 5. January 9, 1909, ' ................................ | 282 50 |
| 6. January 9, 1909, ' ................................ | 250 00 |
To continue reading
Request your trial