Patterson v. Spelts Lumber Co.

• Decision Date: 31 May 1958
• Docket Number: No. 34315,34315
• Citation: 90 N.W.2d 283,166 Neb. 692
• Parties: Ronald H. PATTERSON and Katherine M. Patterson, Appellants, v. SPELTS LUMBER CO., of Gothenburg, a corporation, Appellee
• Court: Nebraska Supreme Court

Page 283

90 N.W.2d 283

166 Neb. 692

Ronald H. PATTERSON and Katherine M. Patterson, Appellants, v. SPELTS LUMBER CO., of Gothenburg, a corporation, Appellee.

No. 34315.

Supreme Court of Nebraska

May 31, 1958.

Syllabus by the Court

1. The mechanics' lien law does not enable a materialman or laborer to tack one contract to another by filing one statement which secures a lien for material and labor furnished under one contract and at the same time secure a lien for material and labor under another contract as to which he has not complied with the statute.

2. A court of equity which has obtained jurisdiction for any purpose will retain jurisdiction for the purpose of administering complete relief between the parties with respect to the subject matter.

3. Ordinarily a personal judgment in favor of a mechanic's lien claimant may be rendered although he fails to establish his alleged lien.

4. Where there is no contract to pay a definite sum for the erection of a building the amount the builder is entitled to recover for material and labor is their reasonable market value.

5. The provisions of section 45-103, R.R.S.1943, as to interest on decrees and judgments for the payment of money refer to judgments or decrees for money which is immediately due and collectible where its nonpayment is a breach of duty on the part of the judgment debtor.

6. A court of equity has a reasonable discretion to allow or withhold interest as is reasonable and just, except in cases where interest is recoverable as a matter of right.

Wm. S. Padley, Gothenburg, for appellants.

Arthur C. Mayer, Grand Island, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

This case originated as an action to quiet title against the cloud of a mechanic's lien. Defendant, resisting the action, cross-petitioned for the foreclosure of the lien. Issues were made and trial was had. The trial court denied the petition of the plaintiffs, granted the cross-petition of the defendant, and rendered a decree of foreclosure. Plaintiffs appeal.

We reverse the judgment of the trial court and remand the cause with directions.

The plaintiffs are husband and wife and owners of the property involved. Unless otherwise stated, they will be referred to as the plaintiffs.

The defendant is a corporation. We will refer to the defendant as such and, where necessary, to the officers of defendant.

The fact issues are here for trial de novo.

The first question presented is that of the validity of the lien. We state the facts necessary to a determination of that matter.

Plaintiffs entered into an oral contract with defendant whereby defendant agreed to build a house for plaintiffs. The contract included the cost of the lot, materials, and labor. The house was completed before January 1, 1956. Plaintiffs occupied it as a finished house before Thanksgiving of 1955. On the itemized account in the mechanic's lien there are items charged in January 1956. It appears, also without dispute, that the sidewalks were cosntructed in March 1956, and material and labor were charged for at that time.

The house was a split level, one-story house with a basement under the higher elevation. The contract did not provide for a finished basement. There was left in the foundation connecting the basement with the unexcavated part under the house an opening described as a crawl hole. During the winter of 1955-56 cold air from the unexcavated area entered the basement. Mrs. Patterson desired to have it closed. In September 1956, Mr. Patterson went to the defendant and it, at his request, sent a carpenter with material to put a door in this opening. The total charge for this was $6.52 made on September 18, 1956.

On October 30, 1956, defendant filed a mechanic's lien for the sum of $4,626.20. So far as this claim is concerned, section 52-103, R.S.S.upp., 1955, requires that it be filed within 4 months of the time of performing the labor or furnishing the material. It is patent that the validity of the lien depends, so far as the amount of $4,619.68 is concerned, upon the right of the defendant to tack the earlier large balance upon the small balance incurred in September 1956.

There is nothing in the evidence that the putting of a door on this opening was ever within the contemplation of the parties as a part of the contract. One of defendant's witnesses testified that it was just one of those things that they never got around to doing. However, there were extended conferences in July 1956 as to what amount, if any, plaintiffs owed the defendant. There appears to have been nothing developed in those conferences relative to the fact that the construction had not been completed in this or any other regard. Defendant offered the evidence of a witness who had been its assistant manager during the time of the construction of this house. He testified that he had never been instructed to do this work before September 1956; that he did it then because Mr. Patterson ordered it done; and that it was just a little extra job that Mr. Patterson wanted and he did it. Under these circumstances, the rule as stated in Rivett Lumber & Coal Co. v. Linder, 113 Neb. 567, 204 N.W. 77, is applicable. It is: The mechanics' lien law does not enable a materialman or laborer to tack one contract to another by filing one statement which secures a lien for material and labor furnished under one contract, and at the same time secure a lien for material and labor under another contract as to which he has not complied with the statute.

It necessarily follows that the mechanic's lien of the defendant is valid for only the sum of $6.52. The judgment of the trial court is reversed as to that and the cause remanded with directions to render a decree foreclosing the lien, if not paid, for the sum of $6.52 with interest at 6 percent from March 18, 1957.

The next question presented has to do with the decree of the district court which found that there was due the defendant from the plaintiffs the sum of $4,626.20 without interest; decreeing a sale of the property to pay the same; and providing for a deficiency judgment.

The question is: How much, if anything, do the plaintiffs owe the defendant in addition to the $6.52?

It is a long-established rule that a court of equity which has obtained jurisdiction for any purpose will retain jurisdiction for the purpose of administering complete relief between the parties with respect to the subject matter. Gibson v. Koutsky-Brennan-Vana Co., 143 Neb. 326, 9 N.W.2d 298.

The rule is stated that ordinarily a personal judgment in favor of a mechanic's lien claimant may be rendered although he fails to establish his alleged lien. 57 C.J.S. Mechanics' Liens § 329, p. 1014; 36 Am.Jur., Mechanics' Liens, s. 283, p. 172.

Defendant alleged in its cross-petition that 'plaintiffs and defendant entered into an oral agreement whereby defendant agreed to furnish plaintiffs a building lot and construct a certain dwelling house on said lot; that plaintiffs agreed to pay defendant upon completion of said dwelling the fair and reasonable cost of said lot and dwelling; that defendant constructed said dwelling and conveyed to plaintiffs title to said lot, and has performed all the conditions of said agreement on its part to be performed.' Defendant further alleged that the fair and reasonable value of the lot, labor, and materials furnished was $15,378.83, less materials returned of $296.85; and that plaintiffs had paid the sum of $10,455.78, leaving a balance due of $4,626.20 for which, with interest, it claimed judgment.

Plaintiffs in answer to the cross-petition alleged that they agreed to pay the amount of a loan of $11,000 and to pay for any extras which they required.

It will thus be seen that plaintiffs alleged a contract by which the completed house and lot was to cost them $11,000, plus extras. The defendant alleged a basis of recovery in quantum meruit.

What was the contract that was proven?

The evidence as to the contract provisions is not set out at any one place in the testimony. Taking the testimony as a whole we have concluded that the contract contained these elements:

Defendant had built a house similar to that contemplated by this agreement. The house was to be built similar to that house. There is no issue raised here as to that. There was discussion as to cost price, including the lot, which related it to the figure of $11,000 to $11,500. However, we find no evidence which is conclusive that sustains plaintiffs' contention that the house was to be built for a fixed price plus extras.

The evidence sustains defendant's contention that in addition to the price estimated, there would be added what the parties refer to as 'slop-over' or 'overflow.'

It appears that defendant was to secure for plaintiffs a building and loan association mortgage loan of $11,000 to $11,500 on the house and that the 'slop-over' was to include the items of cost that would not be paid by the loan. The amount of such excess was an undetermined and, at the time, undeterminable amount.

The rule is that where there is no contract to pay a definite sum for the erection of a building the amount the builder is entitled to recover for material and labor is their reasonable market value. Bates v. St. Anthony's Church, 111 Neb. 426, 196 N.W. 638.

What, then, was the reasonable value of the materials and labor furnished by the defendant?

We can and do determine certain of these matters from the facts which are in this record. As to other items we have concluded that equity requires a remand and retrial.

We consider first the determinable items.

Plaintiffs negotiated for the purchase of the lot at the price of $1,000. Plaintiffs paid $200 of the purchase price. Defendant paid $800 of the purchase price. There is no contention here but that defendant is entitled to credit for the $800 so paid. Defendant is entitled to...