Morrison v. Inter-Mountain Salt Co.

• Decision Date: 31 October 1896
• Docket Number: 739
• Citation: 14 Utah 201,46 P. 1104
• Court: Utah Supreme Court
• Parties: S. W. MORRISON ET AL., RESPONDENTS, v. INTER-MOUNTAIN SALT CO. ET AL., APPELLANTS

46 P. 1104

14 Utah 201

S. W. MORRISON ET AL., RESPONDENTS, v. INTER-MOUNTAIN SALT CO. ET AL., APPELLANTS

No. 739

Supreme Court of Utah

October 31, 1896

Appeal from the Third district court, Salt Lake county. Hon. M. L Ritchie, Judge.

Action by S.W. Morrison and others against the Inter-Mountain Salt Co. and others to foreclose a sub-contractor's lien. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Richards & Richards, for appellant.

J. M Bowman, for respondents.

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

OPINION

BARTCH, J.:

It appears that the Inter-Mountain Salt Company, the appellant herein, was the owner of a certain parcel of land, and contracted with D. W. Gamble to erect a storehouse and factory thereon for the manufacture of salt, and that the plaintiffs, under contract with Gamble, furnished certain materials, which were actually used in the construction of the buildings. Gamble failed to make full payment for the materials, and the plaintiffs, as sub-contractors, pursuant to the act of the territorial legislature approved March 12 1890, filed and served notice of intention to claim a lien on the property. This suit was brought to foreclose the lien. Josiah C. Williams and John Anderson were made parties defendant, and in their answers set up sub-contractors' liens on the same property. After hearing the case, the court rendered judgment against the appellant company and in favor of the plaintiffs and defendants, Williams and Anderson, who are also respondents herein. The appellant insists that the complaint does not state a cause of action. This question was raised at the trial by an objection to the introduction of any testimony, and the point most strongly urged in support of the objection is that there is no allegation of the amount due from the owner to the contractor at the date when the first material was furnished, and the case of Teahen v. Nelson, 6 Utah 363, 23 P. 764, is relied on. It was there held "that the complaint should contain an allegation of the amount of the contract with the owner, less any payment for labor performed and materials furnished under the same, made before the plaintiff commenced work or the delivery of materials on his sub-contract." This rule was declared under the law as it stood prior to the act of 1890, when very material changes were made respecting mechanics' liens. If, under that act, the rule should be strictly and literally enforced in the case of sub-contractors, the object of the law would, doubtless, in many cases, be defeated, because by collusion the owner and principal contractor could withhold from the sub-contractor the terms of the original contract, or any information in relation thereto, he not being a party to such contract. In cases where such contract is not of record, the sub-contractor is not in position...