Neil F. Lampson Equipment Rental & Sales, Inc. v. West Pasco Water System, Inc.

• Decision Date: 03 March 1966
• Docket Number: No. 38114,38114
• Citation: 412 P.2d 106,68 Wn.2d 172
• Court: Washington Supreme Court
• Parties: NEIL F. LAMPSON EQUIPMENT RENTAL AND SALES, INC., a Washington corporation, Respondent, v. WEST PASCO WATER SYSTEM, INC., a Washington corporation, Appellant, George A. Grant, Inc., a Washington corporation, Respondent, Tri-Co Steel Erectors, Inc., a Washington corporation, Defendant.

Page 172

68 Wn.2d 172

412 P.2d 106

NEIL F. LAMPSON EQUIPMENT RENTAL AND SALES, INC., a Washington corporation, Respondent, v. WEST PASCO WATER SYSTEM, INC., a Washington corporation, Appellant George A. Grant, Inc., a Washington corporation, Respondent Tri-Co Steel Erectors, Inc., a Washington corporation, Defendant.

No. 38114.

Supreme Court of Washington, Department 1.

March 3, 1966.

Olson & Olson, Pasco, for appellant.

Loney, Westland, Koontz & Raekes, Philip W. Raekes, Kennewick, Leavy & Taber, Pasco, for respondents.

LANGSDORF, Judge. ^*

This is an appeal from a judgment of the Superior Court for Franklin County, foreclosing a lien based on the furnishing of equipment with an operator.

On June 27, 1963, Tri-Co Steel Erectors, Inc., contracted with West Pasco Water System, Inc. (appellant), to erect a water tower on real property of the appellant located in Franklin County, for a firm price of $2,625, including crane rental. The respondent, George A. Grant, Inc., at the request of an agent of Tri-Co Steel Erectors, Inc., furnished a crane with an operator during the period from June 28 to July 3, 1963, at an agreed price. George A. Grant, Inc., claimed a lien for $702, and properly recorded it with the Franklin County Auditor on September 10, 1963. George A. Grant, Inc., gave no written notice to West Pasco Water System, Inc., that they were furnishing equipment and/or labor.

The respondent, Neil F. Lampson Equipment Rental and Sales, Inc., at the request of Tri-Co Steel Erectors, Inc., furnished a crane with operator during the period from July 3 to July 6, 1963, at an agreed price. Neil F. Lampson, Inc., claimed a lien for $845 and properly recorded it with the Franklin County Auditor on October 2, 1963. Neil F. Lampson, Inc., gave no notice in writing to West Pasco Water System, Inc., that they were furnishing equipment and/or labor. The appellant paid Tri-Co Steel Erectors, Inc., the full contract price and Tri-Co Steel Erectors, Inc., failed to pay either of the respondents.

The trial court granted a decree of foreclosure for the amounts claimed on the liens. Appellant claims as error the court's finding that the furnishing of a crane with an operator constituted labor under the lien laws of the State of Washington and therefore no notice need be given to the landowner to make the lien effective.

Before discussing this question, we must answer respondents' contention that appellant's failure to set out the findings of fact claimed to be in error is in violation of Rule on Appeal 43, RCW Vol. O ¹. The respondents argue that, as a result of this error, the findings of fact made by the trial court are the established facts and that the judgment of the trial court should be affirmed and this appeal dismissed.

Admittedly, appellant failed to set out the findings of fact claimed to be in error. However, where a trial court's conclusion of law is being challenged, it is not necessary to set it out verbatim in the brief. It is clear that, in the case before us, the appellant is challenging the trial court's construction of a statute and not a factual matter. The fact that the court's decision is conched in a paragraph labeled Finding of Fact is irrelevant when it is truly a matter of law with which we are dealing. Fain v. Nelson, 57 Wash.2d 217, 356 P.2d 302 (1960); Kane v. Klos, 50 Wash.2d 778, 314 P.2d 672 (1957); Grove v. Payne, 47 Wash.2d 461, 288 P.2d 242 (1955).

There is no question that, up until 1959 when RCW 60.04.020 ² was amended and the words 'or renting, leasing, or otherwise supplying equipment' were added, Washington law held that the rental or leasing of equipment with an operator constituted labor. In Chavelle v. Island Gun Club, 77 Wash. 304, 137 P. 511 (1914), the plaintiff furnished to the defendant a sand dredge with an operating crew. The trial court denied the right of the plaintiff to enforce a lien upon the property involved. The supreme court, in reversing, ruled that the plaintiff was entitled to a lien for all labor performed under the contract and the fact an instrument or machine was used by the worker does not change the situation.

The question arose again in the case of Ellis-Mylroie Lumber Co. v. Bratt, 119 Wash. 142, 150, 205 P. 398, 401 (1922). In that case, a lien was claimed by one who furnished a sanding machine with an operator. The court stated:

The appellant cites a line of cases such as Hall v. Cowen, 51 Wash. 295, 98 Pac. 670, and Gilbert Hunt Co. v. Parry, 59 Wash. 646, 110 Pac. 541, Ann.Cas.1912B, 225, as well as cases from other jurisdictions, which hold that, where there is simply the leasing or rental of a tool or machine, and the one to whom it is leased or contracted furnishes the operator, no right of lien exists. But those cases do not control where an operator is furnished with the machine. The cases of Potter Manufacturing Co. v. A. B. Meyer & Co., 171 Ind. 513, 86 N.E. 837, 131 Am.St.Rep. 267, and Wood, Curtis & Co. v. El Dorado Lumber Co., 153 Cal. 230, 94 Pac. 877, 16 L.R.A. (N.S.) 585, 126 Am.St.Rep. 80, recognizes this distinction. While in each of these cases the claim for lien was denied, it was in effect stated that, if the owner of the machine had furnished the operator of the machine, the claim for lien would have been sustained.

This same distinction was made in Willett v. Davis, 30 Wash.2d 622, 193 P.2d 321 (1948). The court specifically held that equipment rental was not lienable and cited Chavelle v. Island Gun Club, supra, for the rule that machinery with an operator, is labor under the lien laws even where the machine...