Morrison, Merrill & Co. v. Willard

• Citation: 53 P. 832,17 Utah 306
• Decision Date: 16 June 1898
• Docket Number: 900
• Parties: MORRISON, MERRILL & CO., APPELLANTS v. H. W. WILLARD & W. E. STEWART AND B. J. CLAYTON, RESPONDENTS
• Court: Supreme Court of Utah

53 P. 832

17 Utah 306

MORRISON, MERRILL & CO., APPELLANTS v. H. W. WILLARD & W. E. STEWART AND B. J. CLAYTON, RESPONDENTS

No. 900

Supreme Court of Utah

June 16, 1898

Appeal from district court, Salt Lake county; Ogden Hiles, judge.

Action by Morrison, Merrill & Co. against Willard & Stewart and B J. Clayton. A demurrer to the complaint was sustained as to defendant Clayton, and plaintiff appeals.

Affirmed.

J. M Bowman, for appellant.

King Burton & King, for respondent.

MINER, J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

Plaintiff commenced this action to foreclose a mechanic's lien upon property owned by defendant Clayton, arising upon its contract in furnishing material to Willard & Stewart, as subcontractors on a contract by them to build a house for defendant Clayton, and to secure a judgment against Willard and Clayton. The notice claiming a lien as filed, and set forth in the complaint, so far as material, reads as follows:

To Whom it May Concern:

"Notice is hereby given that Morrison, Merrill & Company, a corporation duly organized under the laws of Utah, intends to claim and hold a lien on the following described premises, to-wit: * * * said described premises being the property of B. J. Clayton, who contracted with H. W. Willard and R. Stewart, doing business as Willard & Stewart, to erect said Clayton a residence on above-described premises. The claimants, Morrison, Merrill & Co., as subcontractors in the first degree, having furnished Willard and Stewart lumber and building material to the amount of $ 775.68, on which there is a credit of $ 301.64, leaving still due and unpaid $ 474.04, for which amount said lien is claimed, together with interest at eight per cent, per annum from September 10, 1896, said Willard and Stewart having bought said material and agreed to pay for the same in cash."

Defendant Clayton filed a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained as to defendant Clayton. Plaintiff declined to amend, and the complaint was dismissed as to Clayton. Thereupon the plaintiff appeals to this court.

The question in the case arises upon the sufficiency of the notice under the statute. Rev. St. § 1386, provides that "every original contractor within sixty days after the completion of his contract, and every person save the original contractor claiming the benefit of this chapter must within forty days after furnishing the last material or performing the last labor for any building, improvement, or structure, or for any alteration, addition to or repair of, or performance of any labor in, or furnishing any materials for, any mining claim, file for record with the county recorder of the county in which the property or some part thereof is situated, a claim in writing containing a notice of intention to hold and claim a lien, and a statement of his demand, after deducting all just credits and offsets, with the name of the owner if known, and also the name of the person by whom he was employed or to whom he furnished the material, with a statement of the terms, time given, and conditions of his contract, specifying the time when the first and last labor was performed, or the first and last material furnished and also a description of the property to be charged with the lien, sufficient for identification, which claim must be verified by the oath of himself or some other person." The evident purpose and object of the statute was to inform the owner or others interested as to the extent and nature of a lienor's claim, in order to facilitate investigation, and determine the relative rank and merits of the lien filed. The rights of subcontractors and material men can be ascertained by reference to the lien as filed, and necessarily rest upon proof of contracts between the parties, such as accord with the terms and conditions set forth in the claim of lien filed. In order to entitle a person to a lien upon the property of another for materials furnished or labor performed, such claimant must substantially comply with all of the requirements of the statute in the statement of his claim for a lien, and in all essential particulars such statement must be true. Whatever rights such lienor has he obtains by virtue of the statute, and a full substantial compliance with its provisions must be observed, or his rights thereunder will fail. The lien is brought into operation by virtue of the statute. The contract for the construction of the building is entered into with a view of or with reference to the statute. The lien is a mere incidental accompaniment, as a means of enforcing payment, or a mere remedy given by statute which secures a performance provided for, but which does not exist, notwithstanding the justice of the claim, unless the...