Peatman v. Centerville Light, Heat & Power Co.

• Decision Date: 06 April 1898
• Citation: 74 N.W. 689,105 Iowa 1
• Parties: R. I. PEATMAN v. THE CENTERVILLE LIGHT, HEAT AND POWER COMPANY, et al., Appellants. [*]
• Court: Iowa Supreme Court

74 N.W. 689

105 Iowa 1

R. I. PEATMAN v. THE CENTERVILLE LIGHT, HEAT AND POWER COMPANY, et al., Appellants. ^[*]

Supreme Court of Iowa, Des Moines

April 6, 1898

Appeal from Appanoose District Court.--HON. T. M. FEE, Judge.

ACTION in equity to recover an amount alleged to be due, and to establish and enforce a mechanic's lien. There was a hearing on the merits, and a decree for the plaintiff. The defendants appeal.

Reversed.

Baker & Moore, for appellants.

Valentine & Valentine, for appellee.

OPINION

ROBINSON, J.

In November, 1893, the defendant the Centerville Light, Heat & Power Company was engaged at Centerville in manufacturing water gas by what was known as the "Loomis Process." The gas so manufactured was not satisfactory and one Joseph Askins submitted to the company a proposition in writing to so change and add to its appliances for making gas as to convert the system from the Loomis to the Askins process. The proposition included a guaranty as to daily capacity, and the quality and quantity of gas which should be made from a specified quantity of hard coal, or hard coke and crude oil, and also included the following: "I further agree to furnish a man to operate the plant for thirty days for the purpose of testing the efficiency of the plant and to instruct the superintendent in its operations, and at the end of thirty days, if the plant has proved to carry out my guarantee, the plant is then to be accepted. * * * I further agree to assign to the Centerville Light, Heat & Power Company the exclusive use of all my patents pertaining to the manufacture of gas in and to the city or town of Centerville Iowa." In consideration of what was to be furnished and done by Askins, the company was to pay him one thousand dollars when the plant should be accepted, and give its two promissory notes for seven hundred dollars each, one of which was to be payable in six months and the other in one year. The proposition was accepted, and Askins performed his part of the agreement thus made. After that had been done, the two notes provided for in the contract were delivered to Askins but the payment of the one thousand dollars was not made. Askins prepared and verified a statement for a mechanic's lien upon the property improved, for the sum of two thousand, four hundred dollars. The statement was verified on the nineteenth day of January, 1894, but was not filed with the clerk of the district court of Appanoose county until the thirtieth day of October of the same year. On the day of its date, however, Askins, for the sum of one thousand dollars, transferred his claim for a lien by an indorsement on the statement, in form as follows: "For value received, I hereby assign the within mechanic's lien to R. I. Peatman, and authorize him to cancel the same when paid. January 19, 1894. Joseph Askins." This action is brought to recover of the company one thousand dollars, with interest, and to establish therefor a mechanic's lien. The defendant D. C. Campbell was the owner of a judgment against his co-defendant, the company, for twenty-one thousand, three hundred and ninety-eight dollars and sixty-two cents, besides attorney's fees and costs. An execution was issued for the satisfaction of the judgment, and the property in question was sold thereunder to Campbell. The district court rendered a decree in favor of the plaintiff for the amount he asked, and for a lien therefor, and adjudged the lien so established to be senior to that of Campbell. The defendants appeal from so much of the decree as establishes a mechanic's lien, and Campbell further appeals from that part of the decree which makes his lien inferior to that established in favor of the plaintiff.

I. The appellants contend that the plaintiff is not entitled to a mechanic's lien, because it had not been perfected by the filing of a statement, as required by law, when Askins transferred the claim in suit to him. The right of the plaintiff to a lien is controlled by chapter 100 of the Acts of the Sixteenth General Assembly. Section 6 of that act contains the following: "Every person, whether contractor or sub-contractor, who wishes to avail himself of the provisions of this statute, shall file with the clerk of the district court of the county in which the building, erection, or other improvement to be charged with the lien is situated, a just and true statement or account of the demand due him * * * and verified by affidavit. Such verified statement or account must be filed by a principal contractor, within ninety days, and by a subcontractor within thirty days from the date on which the last of the material shall have been furnished, or the last of the labor was performed. But a failure or omission to file the same within the periods last aforesaid, shall not defeat the lien, except against purchasers or encumbrancers in good faith without notice, whose rights accrued after the thirty or ninety days as the case may be, and before any claim for the lien was filed." Mechanic's liens are assignable, and follow the assignment of the debt. Idem, section 13. But it is said that the filing of the statutory statement is essential to the creation of the lien, and that an assignment of the debt before the statement is filed will not transfer the lien. The statute does not, however, make the filing of the statement essential, under section 6, to the creation of a lien, but only to preserve it against purchasers or encumbrancers in good faith without notice, whose rights accrue after the expiration of the time fixed for filing the statement. Lee v. Hoyt, 101 Iowa 101, 70 N.W. 95; Lumber Co., v. Bowman, 77 Iowa 706, 42 N.W. 557; Chicago Lumber Co. v. Des Moines Driving Park, 97 Iowa 25, 65 N.W. 1017. Section 1851 of the Revision of 1860, as amended by chapter 111 of the Acts of the Regular Session of the Ninth General Assembly, contained a provision in regard to the filing of the statement to charge subsequent purchasers and encumbrancers, substantially like the one under consideration. That provision was considered in Neilson, Benton & O'Donnel v. Iowa E. R. Co., 51 Iowa 184, 1 N.W. 434, and held, in effect, not to require the filing of the statement in order to perfect the lien as against the owner. The case of Bissell v. Lewis, 56 Iowa 231, 9 N.W. 177, arose under the statute we are now considering, and it was there said: "It is quite clear it is not essential, to the establishment of the...