National Supply Co.-Midwest v. Weaver

• Decision Date: 24 August 1926
• Docket Number: 1335,1345,1327
• Parties: NATIONAL SUPPLY CO.-MIDWEST v. WEAVER et. al. [*] JONES v. SAME. OIL WELL SUPPLY CO. v. STANTON et. al.
• Court: Wyoming Supreme Court

248 P. 353

35 Wyo. 224

NATIONAL SUPPLY CO.-MIDWEST v. WEAVER et. al. ^[*]

JONES v. SAME.

OIL WELL SUPPLY CO. v. STANTON et. al.

Nos. 1327, 1335, 1345

Supreme Court of Wyoming

August 24, 1926

APPEAL from District Court, Converse County; CYRUS O. BROWN, Judge.

Three separate actions, by the National Supply Company-Midwest and by Hoyle Jones against W. H. Weaver and others, and by the Oil Well Supply Company against M. B. Stanton and others consolidated for the purpose of trial. Judgment for defendants in each action, and plaintiff in each action appeals. Argued together on appeal.

Affirmed.

Frank England and Henry E. Perkins, for appellant in No. 1327.

Plaintiff having perfected his lien, under 4830-4839 C. S., should have it enforced; defendant, Olsen, knowing that Weaver was owner of the lease and that the materials were purchased for use in drilling a well thereon, is estopped to deny the lien; 21 C J. 1060; 27 Cyc. 331. The lien in this case was established under Chapter 128 of the laws of 1919, an act complete in itself and enacted for the protection of those furnishing material or labor, or both, for drilling and operating oil and gas wells. The materials were purchased upon Weaver's credit and the lien should be enforced.

Joseph Garst, for respondent in No. 1327.

The trial court found in Olsen's favor, upon evidence tending to support the findings which, under the rule, cannot be disturbed where the evidence is conflicting; Ketchum v Davis, 3 Wyo. 164; Hester v. Smith, 5 Wyo. 291; Kimball v. Payne, 9 Wyo. 441; Riordan v Horton, 16 Wyo. 363. Appellant claims to have furnished materials under an oral contract; 4830 C. S. relates to original contractors and 4831 C. S. to subcontractors; the relations of the parties are governed by contracts designated "BBB" and "CCC"; our contention is that both are contracts of conditional sale, and not contracts coming within the lien law; Weaver bears the relation of a materialman to Olsen, who is the lessee of lands, drilling an oil well thereon; the distinction between original and subcontractors is defined by 18 R. C. L. 911; Roebling Co. v. Humboldt Co., 44 P. 568; Bennett v. Davis, 45 P. 684; Calif. Co. v. Hotel Co., 108 P. 103. A statute restricted to a particular class cannot be extended to one not in that class to support a mechanic's lien; 18 R. C. L. 910. The right is statutory and persons claiming benefits must bring themselves within its terms; Caufield v. Polk, 46 N.E. 932. Materialmen in the second degree may, however, be provided for by statute; 18 R. C. L. 911; 27 Cyc. 100; High Tower v. Bailey, 49 L. R. A. 255; Craig v. Higgins, 224 P. 668; Pacific Rolling Mills v. Co., 68 F. 966.

James P. Kem, for appellant, in case No. 1335.

The statute should be liberally construed in order to promote its objects; Sec. 5532 C. S. Wyo. 1920; Oster v. Rabeneau, 46 Mo. 595; Putnam v. Ross, 46 Mo. 337; De Witt v. Smith, 63 Mo. 263; Dugan Co. v. Gray, 114 Mo. 497, 21 S.W. 854; Joplin Works v. Shade, (Mo.) 118 S.W. 1196; Crane Co. v. Construction Co., (Mo.) 98 S.W. 795; Hicks v. Schofield, (Mo.) 25 S.W. 755; Sawyer Co. v. Clark, (Mo.) 73 S.W. 137; Faulkner v. Bridgett, (Mo.) 86 S.W. 483; Phillips on Mechanics' Liens, p. 10; Morrison v. Hancock, 40 Mo. 561. The Superior Tube Company furnished material to a contractor within the meaning of Sections 4830 and 4831 C. S. Wyo. 1920; Sec. 4859 C. S. Wyo. 1920; Western Co. v. Buckner, 80 Mo. Ap. 95; Wood v. Co., (Ind.) 123 N.E. 702; Co. v. Co., (Mo.) 152 S.W. 119; Co. v. Jones, 60 Mo. Ap. 1; Co. v. Jeffers, 79 Mo.App. 174; Huttig Co. v. Stitt, 218 F. 4; Jones v. Co., 86 F. 370; Becker v. Hopper, 32 Wyo. 237; Stark v. Petty Bros., (Ky.) 243 S.W. 50; Eaman v. Bashford, 4 Ariz. 199. The Superior Tube Company furnished material to an owner, part owner or agent within the meaning of Section 4830 C. S. Wyo. 1920; Co. v. Stone Mason Co., (Mo.) 69 S.W. 304; Dougherty Co. v. Churchill, (Mo.) 90 S.W. 405; Allen Assn. v. Boeke, (Mo.) 254 S.W. 858; Lumber Co. v. Greffet, (Mo.) 133 S.W. 113; Ward v. Nolde, (Mo.) 168 S.W. 596; Meat Co. v. Crane, 21 Ariz. 1; Phillips on Mechanics' Liens, 3d Ed., Section 65.

Joseph Garst, for respondent, in case No. 1335.

Liberal construction cannot operate to defeat legislative intent; Cattle Co. v. Board, 3 Wyo. 598; 4830 C. S. authorizes a lien for materials used in the construction of oil wells by virtue of a contract; the partnership of Stanton and Weaver is a distinct legal entity; Drucker v. Wellhouse, 2 L. R. A. 328; Page v. Bank, 51 L. R. A. 463; Hess v. Lowrey, 23 N.E. 156; Heaton v. Schaeffer, 126 P. 797. The material was sold to Weaver and the partnership did not seem to be involved; 18 R. C. L. 911; Calif. Co. v. Co., 118 P. 103. The firm of Stanton and Weaver, being material men, Weaver, who sold to the firm of Stanton and Weaver, is a materialman of the second degree, and appellant, who sold to Weaver, is a materialman of the third degree; where there is a question whether claimant has taken the proper course, the rule of liberal construction obtains; 27 Cyc. 20; but there are qualifications of the rule; 18 R. C. L. 879; requiring a strict construction; Cline v. Co., 117 N.E. 509; Nanz v. Co., 47 L. R. A. 273; Putnam v. Ross, 46 Mo. 337. The contracts are conditional sales and not within the lien law; 24 R. C. L. 440. A contractor, within the lien law, is one who deals directly with the owner; 27 Cyc. 83; one who furnishes material, labor and superintendence for improvements on premises; Lumber Co. v. Churchill, 114 Mo.App. 578. The comparative value of labor, as compared with materials used, determines the question of an original contractor; 18 R. C. L. 911, and cases cited; all except original contractors are required to give notice; 4879 C. S. A partnership is a legal entity distinct from the persons comprising it; Page v. Bank, supra; Heaton v. Schaeffer, supra. It is apparent that the materials were sold upon the credit of W. H. Weaver and not upon the credit of any particular drilling work; plaintiff failed to maintain the burden of proof required to support a lien; Ketchum v. Davis, 3 Wyo. 164; Hester v. Smith, 5 Wyo. 291; Jackson v. Mull, 6 Wyo. 55; Conway v. Co., 6 Wyo. 468; 18 R. C. L. 922. A contractor, within the meaning of the lien law, is one contracting direct with the owner for a building or other improvement; 27 Cyc. 83 and cases cited. The trial court found generally for Olsen, upon evidence, and it should not be disturbed; Conway v. Co., 6 Wyo. 468. Appellant is not within the class entitled to a lien; 18 R. C. L. 910; 27 Cyc. 100; in the absence of statute providing for materialmen in the second degree; Craig v. Higgins, 224 P. 668. Sections 4830 and 4831 C. S. do not provide a lien for submaterialmen or materialmen of the second degree; 18 R. C. L. 979.

Robert N. Ogden, Jr., for appellant in case No. 1345.

1st. Plaintiff and appellant is within the provisions of the statute with reference to such lien: (a) The notice (lien claim) meets all the requirements of Chapter 128, 1919 Session Laws of Wyoming--Sections 4830 to 4839, Wyo. Comp. Statutes, 1920; (b) Suit to foreclose such lien claim was commenced within the statutory time--Sec. 4834 Wyo. Comp. Statutes, 1920; (c) The petition contained all the requirements of the above cited statutes; (d) Plaintiff and appellant established by a preponderance of the evidence the allegations contained in the petition, including the allegations in the lien claim, by reference made a part of the petition.

2nd. Stanton & Weaver, contracting with the owner to furnish materials for the improvement were original contractors, within the meaning of the statutes above cited, even though they were not "owners", within the statutory meaning; Sections 4830 and 4831, Wyo. Comp. Statutes, 1920 Ed., supra; Lumber Co. v. Nickell, (Tex.) 60 S.W. 450; Iron Wks. v. Riekenberg, (Idaho) 38 P. 651; Hearne v. Chillicothe Co., 53 Mo. 324; Whiteselle v. Texas Loan Agency, (Tex.) 27 S.W. 309; Matthews v. Wagenhaeuser Ass'n., (Tex.) 19 S.W. 150; Ambrose Mfg. Co. v. Gaper, 22 Mo.App. 397; Lumber Co. v. Bldg. Co., (Mo.) 114 S.W. 77; 3rd. The improvement being calculated to develop that part of the entire Irvine Oil Structure, belonging to Olsen, and defendants Stanton and Weaver purchasing one-half thereof from him, even though the materials happened to be delivered on lands of Olsen, plaintiff and appellant is entitled to miner's lien on the entire property and improvements, as one furnishing materials to the owners; McIntyre v. MacGinniss, (Mont. ) 108 P. 353; Berentz v. Belmont Co., (Calif.) 84 P. 47; Salt Lake Hardware Co. v. Co., 157 F. 632; Phillips v. Co., (Idaho) 72 P. 886; Ball v. Oil & Gas Co., (Kan.) 216 P. 422; Co. v. Mfg. Co., (Colo.) 153 P. 765; Wyo. Comp. Statutes, Sections 4830 to 4839, incl.

Joseph Garst, for respondent, in case No. 1345.

The finding made in favor of Olsen should not be disturbed; Jackson v. Mull, 6 Wyo. 55. 4830, 4831 C. S. gives the right of lien to persons performing labor or furnishing material to a contractor or subcontractor; a contractor is one dealing direct with the owner; Ambrose Co. v. Gaper. Persons, other than an original contractor, must give ten days' notice before filing a lien; 4879 C. S.; compliance with the statutes is necessary; 27 Cyc. 110; Herman v Walton, 36 Mo. 620; Wyman v. Quayle, 9 Wyo. 331; Burnside v. O'Hara, 35 Ill. Ap. 150. Contract "CCC" is not of the kind contemplated by Chapters 307 and 308 C. S. The lien contemplates a building and construction contract as distinguished from a conditional sale contract; building and construction contracts have been defined by the authorities; 9 C. J. 693; Carey Lumber Co. v. Jones, 58 N.E. 347; Woods v. Lumber Co., 123 N.E. 702; Daugherty Lumber Co. v. Churchill, 114...