Northwest Bridge Co. v. Tacoma Shipbuilding Co.

• Decision Date: 21 December 1904
• Citation: 36 Wash. 333,78 P. 996
• Parties: NORTHWEST BRIDGE CO. v. TACOMA SHIPBUILDING CO. et al.
• Court: Washington Supreme Court

78 P. 996

36 Wash. 333

NORTHWEST BRIDGE CO. v. TACOMA SHIPBUILDING CO. et al.

Supreme Court of Washington

December 21, 1904

Appeal from Superior Court, Pierce County; W. H. Snell, Judge.

Action by the Northwest Bridge Company against the Tacoma Shipbuilding Company and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Frederick H. Murray, for appellant.

E. R. York, for respondents.

DUNBAR J.

This is an action to foreclose a mechanic's lien upon a certain sevenacre tract. William E. Bowen, as agent or trustee for certain of the respondents, entered into a contract with the state of Washington for the purchase of said tract, with other adjoining lands, and, it is alleged in the complaint entered into a contract with the Tacoma Shipbuilding Company for the purpose of making certain improvements on said land and, upon the payment of certain money, agreed to convey said contract to said shipbuilding company. Said shipbuilding company went into possession of the said tract, and contracted with the Northwest Bridge Company for the construction of a portion of the improvements on said property required by the contract of Bowen, agent, with the shipbuilding company. The agreement between Bowen and the shipbuilding company was duly filed for record and recorded in the office of the auditor of Pierce county on April 30 1901. This supplemental agreement provided that in case the shipbuilding company should expend certain moneys in the construction of certain vessels, shipyards, and improvements on said tide lands and adjacent property, within a prescribed time, Bowen, as agent, would convey the said seven acres of tide lands to that company, but, in case it failed to do so, then the supplemental agreement and the agreement to convey should, at the option of Bowen, as agent cease and become void. On September 15, 1901, the shipbuilding company contracted with appellant to furnish materials and labor in the construction of a shipyard and other work on said land. The shipbuilding company failed to expend the moneys or construct the buildings or improvements provided for by the said supplemental agreement between Bowen, agent, and the shipbuilding company; and Bowen elected to exercise his option, gave notice in writing to the company to cancel and declare null and void the agreement to convey, on account of noncompliance of the company with the terms of the supplemental agreement, and requested the company to execute and return to him a formal cancellation of the agreement, to be filed to clear the title of record, which formal cancellation was made by the company and afterwards filed. Thereafter, on March 5, 1902, appellant filed its notice or claim of lien for $1,280 on the tide land described in the agreement; alleging in said notice that the work was done and material furnished at the request of the Tacoma Shipbuilding Company, as agent of William E. Bowen, as agent for William L. McCabe et al. The shipbuilding company was adjudged insolvent; action was brought to foreclose the lien; the shipbuilding company defaulted; judgment was entered against the shipbuilding company and in favor of Bowen, agent, holding the lien invalid, and decreeing that respondents be dismissed, with their costs, from which decree plaintiff appeals.

It is the first contention of the appellant that if, in a contract of sale, the vendor requires the construction of an improvement, his interest is subject to mechanics' liens for work done and materials furnished at the instance of the vendee. Section 5901, 2 Ballinger's Ann Codes & St., provides that 'the land upon which the property subject to the lien created by the last preceding section is situate, or which is a part thereof, together with a convenient space about the same, or so much as may be required for the convenient use and occupation thereof, to be determined by the court on rendering judgment in a foreclosure of the lien, is also subject to the lien, if at the commencement of the performance of the labor or of the furnishing of the materials, the land belonged to the person who, in his own behalf, or who, through any of the persons designated in the last preceding section to be the agent of the owner, caused the performance of the labor, or the construction, alteration, or repair of the property subject to the lien: provided, that if such person own less than a fee simple in such land, then only his interest therein in subject to the lien.' The proviso, we think, has reference to the person who caused the work to be done or material furnished. Such is the construction given the statute by this court in ...