Mine & Smelter Supply Co. v. Idaho Consol. Mines Co., Ltd.

• Decision Date: 04 October 1911
• Citation: 20 Idaho 300,118 P. 301
• Parties: THE MINE AND SMELTER SUPPLY CO., Respondent, v. IDAHO CONSOLIDATED MINES CO., LTD., and COMMERCIAL AND SAVINGS BANK OF RACINE, WISCONSIN, Appellants
• Court: Idaho Supreme Court

118 P. 301

20 Idaho 300

THE MINE AND SMELTER SUPPLY CO., Respondent, v. IDAHO CONSOLIDATED MINES CO., LTD., and COMMERCIAL AND SAVINGS BANK OF RACINE, WISCONSIN, Appellants

Supreme Court of Idaho

October 4, 1911

MATERIALMAN'S LIEN-LIEN FOR MINING MACHINERY AND MATERIALS-CONTRACT FOR MATERIAL AND SUPPLIES-CONTINUING CONTRACT-BURDEN OF PROOF-SUFFICIENCY OF FINDINGS.

(Syllabus by the court.)

1. A lien for materials and supplies furnished in the construction, alteration or repair of buildings or mining structures or improvements relates back to the date of commencing to furnish the materials therefor.

2. Where a mining company had an open and running account with a mine and smelter supply company, and for the purposes of procuring materials and supplies in order to construct mills and equipments for the operation of the mines they made arrangements with the supply company whereby the mining company should have an extended credit sufficient to cover the materials and supplies necessary in the construction of the proposed works and improvements, and nothing was said with reference to the general open account that had been running, and there was no further understanding with relation thereto, it will be presumed that the extended credit was intended to cover all future purchases and account as one account thereafter, rather than that there should thereafter be two accounts and two credits running at one and the same time; and in the absence of proof and showing to the contrary, a lien should be allowed for the whole account as one continuing contract or transaction for the one general purpose.

3. The facts of this case examined and reviewed, and held that they are sufficient to support a finding and judgment that the materials and supplies were furnished for the construction of a mill and the equipments and improvements to be used on and in connection with a mining claim, and that the same constituted one continuing contract, and that the materialman was entitled to a lien dating from the time of commencing to furnish materials therefor.

4. Where a trial court has made findings in a case which are sufficient to support the judgment and which are contrary to and inconsistent with any finding that might have been made on any other issue in the case which could have been favorable to the adverse party, it will be presumed that had the court made findings on such other issue, that they would have been against the losing party on such issue.

APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Edward A. Walters, Judge.

Action to foreclose a materialman's lien for materials and supplies furnished in constructing mills and furnishing and supplying a mining claim. Judgment and decree for the plaintiff and the defendant mining company and the mortgagee appeal. Affirmed.

Judgment affirmed. Costs awarded to respondent.

Richards & Haga, and Sullivan & Sullivan, for Appellants.

Where the court fails to find on all the material issues made by the pleadings, the judgment will be reversed unless a finding made upon such issues would not affect the judgment entered. When affirmative allegations are set up as a defense in an answer, a finding upon the issue thus presented is imperative, and a failure so to find is reversible error. (Wood v. Broderson, 12 Idaho 190, 85 P. 490; Brown v. Macey, 13 Idaho 451, 90 P. 339; Later v. Haywood, 14 Idaho 45, 93 P. 374; Uhrlaub v McMahon, 15 Idaho 346, 97 P. 784, and earlier Idaho decisions.)

"If the work was done or the materials furnished for separate and distinct purposes or under distinct contracts or orders though in executing one and the same contract with the owner there is no presumption of a continuous account, and the right of lien must date from the time of doing the different jobs of work, or furnishing the different parcels of materials." (Jones, Mechanics' Liens, sec. 1435; Roebling Sons v. Bear Valley Irr. Co., 99 Cal. 488, 34 P. 80; Holmes v. Ritchet, 56 Cal. 307, 38 Am. Rep. 54; Cohn v. Wright, 89 Cal. 86, 26 P. 643; Weatherly v. Van Wyck, 128 Cal. 329, 60 P. 846.)

"The materialman cannot follow the material and fix a lien for its contract price on the premises wherever it may happen to be used." (Bloom, Mechanics' Liens, sec. 82.)

The intention that the material when sold should go into a certain building must have been such an intention that, by virtue of it, in some measure, credit was extended. (Eisenbeis v. Wakeman, 3 Wash. 534, 28 P. 923; Odd Fellows' Hall v. Masser, 24 Pa. 507, 64 Am. Dec. 675.)

Under ordinary sales on credit a lien will not attach because of the absence of that vital qualification of the statute of an agreement as to the particular use to which the goods shall be put and the particular building in which they shall be used. (Colo. Iron Works v. Riekenberg, 4 Idaho 705, 43 P. 681; Wagner v. Darby, 49 Kan. 343, 33 Am. St. 369, 30 P. 475; Wilson v. Howell, 48 Kan. 150, 29 P. 151; Noar v. Gill, 111 Pa. 488, 4 A. 552.)

Where there are two separate and distinct contracts for the erection of a building and the materialman knows there are two contracts, he cannot tack the last contract to the first so as to procure a lien for all the materials furnished under the separate contracts. (Valley Lbr. & Mfg. Co. v. Driessel, 13 Idaho 680, 93 P. 771, 15 L. R. A., N. S., 299.)

Johnson & Johnson, for Respondent.

No separate and distinct contracts were shown as in the case of Valley Lumber Co. v. Driessel, 13 Idaho 680, 93 P. 771, 15 L. R. A., N. S., 299, cited by appellant, where there was a contract for a house which was completed and afterward a new and separate contract for a porch under which materials were commenced to be furnished fifty-nine days after the house was completed.

The question of priority is settled by sec. 5114, Rev. Codes. Under this section the lien relates back to the date when the materials were commenced to be furnished. (P. States etc. Co. v. Dubois, 11 Idaho 319, 83 P. 513; P. Mutual Life Ins. Co. v. Fisher, 106 Cal. 224, 39 P. 758; Avery v. Clark, 87 Cal. 619, 22 Am. St. 272, 25 P. 919; McClain v. Hutton, 131 Cal. 132, 61 P. 273, 63 P. 182, 622; Soule v. Borelli, 80 Conn. 393, 68 A. 981; Milner v. Norris, 13 Minn. 455; Fields v. Daisy Gold Min. Co., 25 Utah 76, 69 P. 528 (under same statute as ours).)

AILSHIE, J. Stewart, C. J., concurs. SULLIVAN, J., Dissenting.

OPINION

AILSHIE, J.

This is a controversy between a lien claimant for materials furnished and a mortgagee as to the validity and priority of a lien claim. The appellant, the Commercial and Savings Bank of Racine, Wis., holds a mortgage of $ 250,000 against the Idaho Consolidated Mines Co., which was filed of record on the 10th day of February, 1909. The respondent, the Mine and Smelter Supply Company, claims a lien on the property covered by the mortgage for materials and supplies furnished between the 5th day of November, 1907, and the 17th day of September, 1909, for the construction of mills and assay office and equipping the mill and mine. Judgment and decree were entered establishing the respondent's lien and its priority over the appellant's mortgage, and this appeal has been prosecuted.

No question arises over the execution of the mortgage or its validity or the amount due thereon. Neither is there any dispute over the amount due to the respondent. The only real question to be determined is whether the material and supplies furnished were supplied under such terms and conditions, or under such a contract, as will bring the case within the purview of the statute and entitle the respondent to a lien therefor. The whole matter reduces itself down to more of a question of fact than law, and has necessitated a very diligent examination of the entire evidence in the case. Our examination of the facts as disclosed by the record has not been as illuminating as a record ought to be in such a case. Some of the facts which we consider very essential and for which we have searched diligently are so obscured by verbiage and some seeming evasions that we find ourselves in doubt as to the true situation in several respects. We gather, however, in substance the following conditions from the record:

The Idaho Consolidated Mines Co., which was the owner of a large mining property commonly known as the Minnie Moore Mine, in Blaine county, was working and operating the mine, and for some seven or eight years had been running an open account with respondent for supplies and materials used in repairing and operating the mine. About July, 1907, Irvin E. Rockwell, the company's manager, entered into negotiations with the respondent for the purpose of securing a credit with the company sufficient to cover the purchase of such materials and supplies as would be necessary for the construction of a quartz-mill and the adjuncts thereto, and the equipping and supplying of an assay office, and such other works and equipments as were incident to or necessary in connection with such a mill and mine. The Mine and Smelter Supply Company sent its agent to the company's mine, where he looked over the situation and made estimates as to the probable expense that would be incurred in the work proposed, and he reached the final conclusion that it would cost at least $ 15,000. It was thereupon agreed that the company might go ahead with the construction of its mill and the equipping of the mill and mine as proposed, and that the respondent company would furnish the materials and carry the account from one to two years. The mining company accordingly began sending in its orders for various materials, supplies and machinery, and orders for various items were sent from time to time for a period covering nearly two years. The orders always designated the particular...