Riggen v. Perkins

• Decision Date: 05 April 1926
• Parties: FRANK RIGGEN, Plaintiff and Appellant, v. PROCTOR K. PERKINS and FLO PERKINS, His Wife, GEM STATE LUMBER COMPANY, a Corporation, and WOOD RIVER POWER COMPANY, a Corporation, Defendants and Respondents, and BROWNELL BROTHERS COMPANY, LTD., a Corporation, and COAST LUMBER COMPANY, a Corporation, Defendants and Appellants
• Court: Idaho Supreme Court

246 P. 962

42 Idaho 391

FRANK RIGGEN, Plaintiff and Appellant, v. PROCTOR K. PERKINS and FLO PERKINS, His Wife, GEM STATE LUMBER COMPANY, a Corporation, and WOOD RIVER POWER COMPANY, a Corporation, Defendants and Respondents, and BROWNELL BROTHERS COMPANY, LTD., a Corporation, and COAST LUMBER COMPANY, a Corporation, Defendants and Appellants

Supreme Court of Idaho

April 5, 1926

MECHANICS' LIENS-INSUFFICIENT LABOR LIEN CLAIMS-CONTRACTOR AS AGENT OF OWNER-SUBCONTRACTOR'S LIEN-PRIORITY OF LIEN-CORPORATION AS CLAIMANT OF LABOR LIEN.

1. Labor lien claims, containing no recital of whether there was contract or contractor, and containing no recital of name of owner or person by whom labor was employed, except recital that certain person was owner or reputed owner of described premises, and "caused said labor," are insufficient, under C. S., sec. 7346.

2. Contractor is not statutory agent of owner so as to make laborer employed by him direct contract employee of owner although he is agent for purpose of giving lien on premises by one performing labor for him.

3. As respects priority, corporation furnishing labor and material in installing heating plant and plumbing, contracting directly with original contractor to furnish material and labor, was entitled to lien as subcontractor only, and not as materialman, for amounts of such contracts.

4. Corporation installing inside wiring of residence was entitled only to lien as subcontractor as respected priority where price of labor was not included as part of delivered price of material.

ON PETITION FOR REHEARING.

5. Though, within C. S., secs. 7339, 7350, 7351, corporation is a "person," in view of Laws 1899, p. 155, chap. 5 secs. 1, 2, and C. S., secs. 9444, 9456, it cannot have labor lien, as labor liens are given only to those performing labor, and not to those furnishing labor.

APPEAL from the District Court of the Fourth Judicial District, for Blaine County. Hon. Ralph W. Adair, Judge.

Action to foreclose eight mechanics' liens. Judgment denying liens as to certain claimants, granting liens as to certain claimants and declaring a priority. Modified and affirmed.

Judgment affirmed in part and modified in part. Costs to respondent Gem State Lumber Company.

McFadden & Perkins, for Respondents Proctor K. Perkins and Flo Perkins.

W. A. Brodhead and Richards & Haga, for Appellant Brownell Bros. Co., Ltd.

When the essential nature of an agreement is to furnish plumbing and heating fixtures and materials, the party so furnishing the plumbing and heating is a materialman and the fact that certain labor is required to properly install such plumbing and heating in the building and make it available for use does not change the agreement into one for construction or change the status of the party furnishing it from a materialman to that of a subcontractor. (Hihn-Hammond Lbr. Co. v. Elsom, 171 Cal. 570, Ann. Cas. 1917C, 798, 154 P. 12; Bennett v. Davis, 113 Cal. 337, 54 Am. St. 354, 45 P. 684; Hinckley v. Field's Biscuit & Cracker Co., 91 Cal. 136, 27 P. 594; Bryson v. McCone, 121 Cal. 153, 53 P. 637; John A. Roebling's Sons v. Humboldt Electric Light & Power Co., 112 Cal. 288, 44 P. 568; California Portland Cement Co. v. Wentworth Hotel Co., 16 Cal. 692, 118 P. 103, 113.)

R. M. Angel, for Appellant Frank Riggen.

"The precise words of the statute are not required to be used by the claimant. Where other and substantially equivalent expressions are resorted to, it will be deemed sufficient compliance with the requirements of law." (Ascha v. Fitch, 5 Cal. Unrep. 481, 46 P. 298; Costagnetto v. Coppertown S. & M. Co., 146 Cal. 329, 80 P. 74.)

"Where a lien is sought against the property of the person with whom the contract is made, and to whom the materials are furnished, it is sufficient to give the name of the owner as the person to whom they were furnished, although in fact they have been ordered and received by an agent or employee of such owner, in which case the act of the agent is the act of the principal. (Allen v. Elwart (Or.), 44 P. 823.)

"Although where the claim was for materials furnished to a contractor with the owner, it should be so stated in the notice, failure to state that fact was not fatal. " (Darrow v. Morgan, 65 N.Y. 333; 27 Ency. Law, 180.)

Total lack of the name of the owner is fatal. (White v. Mullins, 3 Idaho 434, 31 P. 801. But see Creer v. Cache Valley Lumber Co., 4 Idaho 280, 95 Am. St. 63, 38 P. 653.)

Budge & Merrill and J. G. Hedrick, for Respondents Gem State Lumber Co. and Wood River Power Co.

The notice of a claim for a mechanic's lien filed with the recorder is insufficient where it fails to state the name of the person by whom employed or to whom he furnished materials. (Madeira Flume & Drain Co. v. Kendall, 120 Cal. 182, 65 Am. St. 177, 52 P. 304; Hogan v. Bigler, 8 Cal.App. 71, 96 P. 97; Rankin v. Malarkey, 23 Ore. 593, 32 P. 620, 34 P. 816; Warren v. Quade, 3 Wash. 750, 29 P. 827; Tacoma Lumber Co. v. Wilson, 3 Wash. 786, 29 P. 829; Heald v. Hodder, 5 Wash. 677, 32 P. 728; Steel v. Argentine Min. Co., 4 Idaho 505, 95 Am. St. 144, 42 P. 585; White v. Mullins, 3 Idaho 434, 31 P. 801.)

No reference in the body of the instrument to the person to whom materials were furnished than that stated in the title is insufficient. (White v. Mullins, supra; Malter v. Falcon Min. Co., 18 Nev. 209, 2 P. 50.)

The term "subcontractor" embraces all persons who agree with the original contractor to furnish the material and construct for him on the premises some part of the structure which the original contractor has agreed to erect for the owner. (Hihn-Hammond Lumber Co. v. Elsom, 171 Cal. 570, Ann. Cas. 1917C, 798, 154 P. 12; Herman & Grace v. City of New York, 130 A.D. 531, 114 N.Y.S. 1107, 1 Civ. Proc. R., N. S., 213; Friedman v. Hampden Co., 204 Mass. 494, 90 N.E. 851; People (Davis) v. Campfield, 150 Mich. 675, 114 N.W. 659; Phillip on Mechanics' Liens, 3d ed., sec. 44; Bloom on Mechanics' Liens, sec. 66; 18 R. C. L. 910.)

Furnishing an article, or performing service trivial in character, is not sufficient for extending time of filing lien, where the article is furnished or the labor performed after having substantially completed the contract. (Gem State Lumber Co. v. Witty, 37 Idaho 489, 217 P. 1027.)

Davidson & Davison, for Appellant Coast Lumber Company.

TAYLOR, J. Wm. E. Lee and Givens, JJ., concur.

OPINION

TAYLOR, J.

This action was originally brought by Frank Riggen to foreclose eight labor liens for work done by himself and his seven assignors in the erection of a house for the respondent Proctor K. Perkins. The other parties, Brownell Brothers Company, Gem State Lumber Company, Wood River Power Company and the Coast Lumber Company, were made parties on their claims of liens upon the same property. A judgment of nonsuit was entered against the plaintiff Riggen and the Coast Lumber Company, and in favor of the other lien claimants. Riggen and the Coast Lumber Company appealed from that judgment, and Brownell Brothers Company from the portion of the judgment declaring a priority between the successful lien claimants.

The defendant Perkins entered into a written contract with the Arco Mill & Building Company by which the latter agreed "to provide all the materials and to perform all the work" in erecting the dwelling-house in controversy, according to plans and specifications. This company partially completed the building and abandoned its work. All the lien claimants are shown to have dealt directly with the contractor Arco Mill & Building Company, and were to have been paid by it. They had no contracts of employment or purchase or sale with, or promise of pay from, the owner.

The labor lien claims did not contain "the name of the person by whom he was employed," as required by C. S., sec. 7346. The labor liens filed were all similar in form to that of plaintiff Riggen. They contained no recital, in the title or elsewhere, of the name of the contractor, or that there was such a contract or contractor. Each recited that the claimant "as laborer" performed labor in and upon that certain building, describing it. The only recital of the name of the owner or person by whom the claimant was employed, was: "That the said Proctor K. Perkins is the owner or reputed owner of said described premises, and caused said labor by the said Frank Riggen."

Counsel for plaintiff Riggen attempts to support the claims for labor liens by the contention that the contractor Arco Mill & Building Company was the statutory agent of defendant Perkins, and that thus he should be permitted to establish, under an allegation such as recited, that the defendant employed the labor claimants. The Arco Mill & Building Company was the statutory agent of defendant for the purpose of giving a lien upon the premises by one who performed labor for it, but not for the purpose of making a laborer employed by it the direct contract employee of the owner, or thus by law to supply a relation which would support an allegation of the lien or complaint that the laborer was "employed" by the owner, or that, under the facts, the owner was the "person by whom he was employed." The failure to set forth in the claims of liens, under these circumstances, any statement of the person by whom the laborers were employed, was fatal to the liens. (Robertson v. Moore, 10 Idaho 115, 77 P. 218; Steel v. Argentine Mining Co., 4 Idaho 505, 95 Am. St. 144, 42 P. 585; Hogan v. Bigler, 8 Cal.App. 71, 96 P. 97; Dillon v. Hart, 25 Ore. 49, 34 P. 817.)

The court entered a nonsuit against the Coast Lumber Company on its claim of lien for materials, upon the insufficiency of its lien claim and cross-complaint. The company has filed no brief and made no appearance on the hearing. We have,...