O'Neil v. Taylor
| Decision Date | 10 April 1906 |
| Citation | 53 S.E. 471,59 W.Va. 370 |
| Parties | O'NEIL v. TAYLOR et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
A commissioner may authorize any person to write his report at his dictation and under his supervision. It is not essential that it should be in his own handwriting.
In a contract directly with the owner our statute does not require of the contractor an itemized account of work done and material furnished to enable him to procure his mechanic's lien, but he is required to file "a just and true account of the amount due him after allowing all credits, together with a description of the property intended to be covered by the lien sufficiently accurate for identification, with the name of the owner or owners of the property, if known."
A general statement of the demand of such contractor showing its nature and character, and the amount due or owing thereon after allowing all credits, is a compliance with the statute.
When repairs, improvements, and additions are made to a building under contract directly with the owner, and the work prosecuted to completion, dates when the several items of work were done and materials furnished are not material except that it must appear that the last work done and the last material furnished necessary to the completion of the work was done and furnished within 60 days before the filing and recording of the mechanic's lien.
When a contractor undertakes with the owner to make such repairs improvements, and additions, without a contract price as to the whole work, but in the course of the work it is agreed that a certain sum shall be paid for a particular part of the work which is done along with the rest of the work, such sum may constitute one item in the general account, and form a part of the mechanic's lien, although the work and material represented by said sum may have been done and furnished more than 60 days prior to the filing of the lien.
Under such general contract with the owner for such work and repairs, where walks and fences on the premises are constructed as appurtenant to such building and at the same time, the contractor is entitled under our statute to include the same in his mechanic's lien.
And so the price of a coalhouse and sample room constructed on the premises under such contract, appurtenant to and to be used with such building, used as a hotel, is proper to be included in such mechanic's lien.
A mechanic's lien may include an item for a drain pipe from the cellar of a house into a sewer in the street. Such drain pipe is a part of the house.
In a suit to enforce mechanic's liens, it is error to decree as part of plaintiff's costs "the sum of $300 counsel fees hereby allowed counsel for plaintiff for conducting this suit."
In a suit to sell real estate to satisfy mechanic's liens and judgment liens, and also a subsequent trust lien, which covers a part only of the real estate so to be sold, it is error to decree the sale of the property as a whole.
Appeal from Circuit Court, Mingo County.
Bill by J. H. O'Niel against Charles B. Taylor and others. Decree for complainant, and defendant Chas. B. Taylor appeals. Affirmed in part and reversed in part, and remanded.
Holt & Duncan, for appellant.
C. H Jones, for appellees.
MCWHORTER, P.
J. H. O'Niel filed his bill in equity in the circuit court of Mingo county against Chas. B. Taylor, W. B. Cox, Bank of Williamson, and others to enforce his mechanic's lien against lots 1, 2, 3, 4, and 5, in block No. 17, in the town of Williamson, the property of defendant Taylor, upon which was located an hotel building, and its appurtenances known as the "Hotel Moose," which mechanic's lien was duly recorded on the 31st day of January, 1903, claiming a balance then due of $1,259.35 after allowing all credits to which the defendant was entitled. The defendant W. B. Cox also filed and recorded a mechanic's lien upon the same property, claiming a balance due him of $1,544.57 for work and labor and material furnished, including heating apparatus for said hotel, the contract for which heating apparatus amounted to $475, also the defendant Georgia Lumber Company filed its lien for material furnished in the construction and repair of the said hotel property, claiming a balance of $1,273.24. The plaintiff in his bill set up his own lien, as well as alleging the other mechanics' liens and several judgments against the said C. B. Taylor, which were liens upon the said property, as well as a vendor's lien in favor of W. J. Williamson, who conveyed the said property to plaintiff for $3,500 and interest, which was a lien on lots Nos. 1, 2, 3, and 5, and the undivided half of lot No. 4, in said block No. 17. A decree of reference was made in said suit on the 15th day of May, 1903, to a commissioner of the said court to ascertain the liens upon the said lots 1, 2, 3, 4, and 5, the holders of such liens and the amount and priorities thereof, the title of said defendant Chas. B. Taylor to said real estate, and whether or not the rents, issues, and profits of said estate for a period of five years thereof would pay off and discharge the said liens against it. Chas. B. Taylor filed his answer, denying the validity of the liens of the said plaintiff and of W. B. Cox and the said Georgia Lumber Company, and denying especially that, if liens at all, they covered lots 1 and 2 of said real estate. Defendants Cox and the Georgia Lumber Company filed their answers, setting up their respective liens. On the 15th of September, 1903, the commissioner filed his report showing the various liens upon the said property: First, the vendor's lien; second, the several mechanics' liens, including interest, that of plaintiff at $1,110.18 and W. B. Cox $1,413.44 and the Georgia Lumber Company $992.26, which three liens were reported as the second lien upon lots Nos. 1, 2, 3, and 5, and the one half of lot No. 4, and the first lien upon the other half of lot No. 4, and, besides the judgment liens reported with their priorities, he reported as the ninth lien by virtue of a deed of trust in favor of C. H. Jones, trustee, to secure the payment of $4,000 due by note dated July 31, 1903, four months after date to the Bank of Williamson, which was the ninth lien on lots 3, 4, and 5, of block 17. The Georgia Lumber Company excepted to the report because it did not report the amount properly due on its mechanic's lien, to wit, the sum of $1,330.53. The defendant Chas. B. Taylor filed in open court various exceptions to the said report. The depositions taken upon which the commissioner's report is based are filed in the record.
The cause came on to be heard on the 24th day of January, 1904, and the court sustained plaintiff's exceptions Nos. 3, 4, 5, and 10, affecting the lien of the plaintiff and eliminating therefrom the item of $10 for unloading dry lumber, of $7 for unloading framing, $6 for hauling lumber, and $3.95 for payment of freight on material, and sustained the exception No. 4 touching the lien of W. B. Cox and eliminating therefrom the item of $100 for right of sewer on four lots and sustained exceptions to the report allowing several judgments, one in favor of Emmons Hawkins Hardware Company as the fourth lien, the judgment in favor of Valentine Newcomb & Carder as part of the fifth lien, the judgment in favor of W. H. H. Holswade as one of the fifth lien, and the judgment in favor of G. A. Northcott & Co., counsel for said lienors, stating in court that said judgment liens had been paid off and discharged, and sustained the exception of the Georgia Lumber Company to the said report and overruled all other exceptions, and confirmed the commissioner's report in all other things and decreed the liens upon the property as mentioned in said report as corrected, and decreed that said several liens be paid by the said Taylor, with interest on the same, respectively, from the 6th of September, 1903, until paid, and the costs of this suit decreed to be paid to the plaintiff, including the sum of $300 for counsel fees, to be taxed as part of the costs. "It is further adjudged, ordered, and decreed that the said defendant C. B. Taylor do within 30 days from the rising of this court pay unto the said W. J. Williamson, J. H. O'Niel, W. B. Cox, the Georgia Lumber Company, a corporation, the Bank of Williamson, a corporation, and the Keystone Hardwood Lumber Company, their said lien debts and judgments, respectively, as hereinbefore ascertained and adjudicated, with interest thereon at such respective dates herein named until paid, and the costs of this suit, including the said sum of $300, counsel fees allowed counsel for plaintiff for conducting this suit; and in default of such payment it is further adjudged, ordered, and decreed that the said property, to wit, lots Nos. 1, 2, 3, 4, and 5, in block No. 17, in the said town of Williamson, Mingo county, West Virginia, together with the buildings thereupon situate, or so much thereof as may be necessary to pay off and discharge all of the lien debts and judgments according to their respective priorities, as hereinbefore ascertained and adjudicated, and the costs of this suit, be sold at public auction to the highest bidder at the front door of the courthouse of said county, on the following terms, to wit: One-third of such purchase money to be paid cash in hand on the day of sale, and the residue upon a credit of one and two years, the commissioners hereafter appointed to take from the purchaser interest-bearing notes with good security for the deferred payments." And appointed commissioners to make sale accordingly. From this decree the defendant Chas. B. Taylor appealed, and made eight assignments of error:
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