Milner v. Norris

• Decision Date: 01 January 1868
• Citation: 13 Minn. 424
• Parties: ISAAC W. MILNER and others v. CHARLES F. NORRIS and others.
• Court: Minnesota Supreme Court

13 Minn. 424

ISAAC W. MILNER and others

v. CHARLES F. NORRIS and others.

Supreme Court of Minnesota.

Appeal by defendants from a judgment of the district court, Ramsey county.

The action was to enforce a mechanic's lien for cut stone furnished by plaintiff for a building under a contract between him and one McCargar, the owner.

Plaintiff had judgment below.

Geo. L. Otis, for respondents.

H. J. Horn, for appellants.

BERRY, J.

The referee has found in this case that on the twenty-fourth day of July, 1865, McCargar and the plaintiffs entered into a contract whereby "plaintiffs agreed to cut from their own materials and furnish to the said McCargar all the cut stone required" for a building, (which McCargar contemplated erecting,) according to the architect's plans and specifications, and that McCargar, in consideration thereof, promised to pay the plaintiffs what the same should be reasonably worth, "payments to be made from time to time as the work under said contract progressed."

Clearly this was one contract, and it was the only contract under which the materials were furnished, and under which payments were to be made as the work progressed. Neither the plaintiffs nor McCargar were at liberty to repudiate it at pleasure at any stage of its performance.

"Whoever performs labor or furnishes materials * * * for erecting * * * any building, * * * by virtue of a contract or agreement with the owner * * * thereof, shall have a lien," etc. Gen. St. c. 90, p. 589.

The statute gives the lien irrespective of the fact that the contract may be to furnish distinct items of material or perform distinct items of labor to be paid for as the work progresses.

The contract between the plaintiffs and McCargar was made and partially performed before the mortgage to defendant Norris was executed, and the building was in process of construction and the contract in process of performance at the time of the execution of the mortgage. In other words prior to the execution of the mortgage the plaintiffs had commenced to perform the labor and furnish the materials contracted for. The fact that some part of the materials was furnished and used in the building after the execution of the mortgage is, then, not important, because by section 7, c. 90, Gen. St., the filing of an account as there provided "operates as a lien" "from the commencement of such labor or the furnishing of such materials," that is to say from the commencement of the labor performed and materials...