Mountain Electric Co. v. Miles

• Decision Date: 22 February 1899
• Citation: 56 P. 284,9 N.M. 512
• Parties: MOUNTAIN ELECTRIC CO.v.MILES et al.
• Court: New Mexico Supreme Court

9 N.M. 512

56 P. 284

MOUNTAIN ELECTRIC CO.

v.MILES et al.

Supreme Court of the Territory of New Mexico.

Feb. 22, 1899.

Syllabus by the Court.

1. A person who is entitled to a mechanic's lien by reason of material furnished or work done is entitled to a lien on the whole of the building constructed or improved, together with so much of the lot or lots on which the building so constructed or improved stands as may be necessary for the full use and enjoyment of the property.

2. The acceptance of a promissory note by the contractor from the debtor, which promissory note falls due before the expiration of the statutory period within which such lien may be foreclosed, does not impair the contractor's lien, nor his right to such lien.

3. The taking of such promissory note by the contractor from the debtor is not a taking of collateral security in the legal sense of the phrase “collateral security.”

Appeal from district court, Bernalillo county; before Justice N. C. Collier.

Action by the Mountain Electric Company against George H. Miles and others. Judgment for defendants, and plaintiff appeals. Reversed.

The taking of promissory note by the contractor from the debtor is not a taking of “collateral security” in the legal sense of the phrase.

Johnston & Final and A. B. McMillen, for appellant.

Niell B. Field, for appellees.

LELAND, J.

This cause comes into this court on appeal from the district court of Bernalillo county. This was an action to enforce or foreclose a mechanic's lien on certain property in the city of Albuquerque. A brief statement of this case is as follows: On or about December 23, 1891, one George H. Miles was engaged in conducting an hotel business in a building owned by the Armijo heirs, and situate in said city of Albuquerque. Said Miles was a tenant. Said hotel building was situate on lots numbered 1, 2, 3, 4, and 5, of block 17, in the city of Albuquerque. On or about said 23d day of December, 1891, said Miles entered into a contract with the Mountain Electric Company, a Colorado corporation, for the purchase and delivery at Albuquerque of an electric light plant, to be paid for when said plant was installed and tested. Said company fulfilled their part of the contract by the delivery of the plant proper, and necessary attachments for the same. Said electric light plant was installed on the lots named above. Said Miles failed to pay for the purchase at the time agreed, and an extension of time was granted by the company to said Miles. Finally a promissory note for the amount due was taken by the company from said Miles. Said company perfected and filed in the proper office a mechanic's lien on the property heretofore described for the amount of the debt due it. Suit to enforce this lien was brought in the district court in Bernalillo county, and the court decided said cause against the complainant herein, and to reverse said judgment appeal is prosecuted in this court.

In view of the fact that this case has been so vigorously contested, and such elaborate briefs filed by both counsel, we have given a great deal of time to the investigation of the questions raised in this case. In the examination and consideration of this case we have considered all letters and telegrams mentioned in the record, and contended for by counsel for defendants below as in evidence, and treated the record as full and complete in this respect. Having considered this case in the light of all the evidence disclosed by the record, as well as the telegrams, about which there was some contention, the contention of counsel for defendants under the second point of this brief need not be considered in this opinion.

The third point contended for in brief of counsel for defendants, that “the contract proved, if any contract is proved, was for the sale of machinery in the open market, not for any particular building,” we think untenable, because the testimony of witness Charles F. Lacombe, president of the company, Moses L. Stearns, and its salesman, Thomas B. Stearns, and J. W. Stearns, Jr., when construed together with the declarations made by George H. Miles as proven, satisfies us fully that the company knew the purposes for which they were furnishing this machinery, etc., and that George H. Miles purchased the electric machinery and fixtures for the Armijo Hotel, expecting to sell enough light in the market to enable him to light the hotel free of cost; and this testimony conclusively proves that the Mountain Electric Company believed and understood at the time that they were selling and furnishing this plant and fixtures for the Armijo Hotel in the city of Albuquerque. Witness Lacombe's testimony is clearly admissible and is undisputed. The evidence of this transaction clearly places this company in a position at this stage of the case to claim all the rights and benefits that inure to contractors under section 2217 of the Compiled Laws of New Mexico. The contention of counsel for the defendants that “the dynamo,” etc., “was sold upon the faith of the telegram from the First National Bank, and not to be used in the Armijo Hotel, or any other particular building,” is not sustained by the evidence, especially as to where said machinery, etc., was to be used. The evidence shows that this telegram was sent by the bank at the request of Miles, he using the bank as a reference. This telegram probably strengthened the credit of Miles with the company. It could do no more. The bank does not guaranty payment, nor in any way known to the law become liable for the debt, default, or miscarriage of Miles. This telegram evidences but one fact, to wit, that the bank acted as a business reference only for Miles, at Miles' request, in this one transaction.

The fourth contention of counsel for defendants, that “the claim of lien was not perfected within the time allowed by law,” is not sustained by the evidence. This claim had to be perfected within 60 days after the furnishing of the materials. The...