Rio Grande Lumber & Fuel Co. v. Buergo.

• Decision Date: 05 November 1937
• Docket Number: No. 4242.,4242.
• Citation: 73 P.2d 312,41 N.M. 624
• Court: New Mexico Supreme Court
• Parties: RIO GRANDE LUMBER & FUEL CO.v.BUERGO.

41 N.M. 624

73 P.2d 312

RIO GRANDE LUMBER & FUEL CO.

v.BUERGO.

No. 4242.

Supreme Court of New Mexico.

Nov. 5, 1937.

Appeal from District Court, Dona Ana County; Numa C. Frenger, Judge.

Suit by Rio Grande Lumber & Fuel Company against Jose Buergo. From a judgment for plaintiff, defendant appeals.

Reversed and remanded, with instructions.

Under the statute requiring an owner to post notice of nonresponsibility to prevent his interest from being subject to mechanic's lien within three days after he obtains knowledge of the construction, alteration, or repair, or the intended construction, alteration, or repair, it is sufficient for a lessor to post the notice within three days after he obtains knowledge of the actual construction though he knows from the lease itself that repairs are intended. Comp.St.1929, § 82-210.

W. C. Whatley, of Las Cruces, for appellant.

R. R. Posey, of Las Cruces, for appellee.

SADLER, Justice.

The defendant (appellant) appeals from a judgment foreclosing a mechanic's lien on certain real estate owned by him in the village of Organ, Dona Ana county, N. M. The improvements for which the lien was claimed consisted of repairs to the roof and putting in windows and doors in a building already constructed. Certain materials were furnished by the plaintiff to the amount of approximately $100 upon order of the lessee of the premises and used in the building. It is for the contract price of said materials that the lien was established and foreclosed against the fee interest in said real estate.

The owner of the fee-simple estate in said premises, as defendant, objected to the establishment of any lien against his interest upon the ground that, within three days after obtaining knowledge that the repairs in question were in progress, he posted the property in compliance with 1929 Comp. § 82-210. The court so found. The theory upon which the trial court apparently fixed liability of defendant's premises to the lien asserted was that in making the repairs indicated the lessee was “agent of the owner” within the meaning of 1929 Comp. § 82-202, and that an owner may not, under the posting statute, relieve himself of liability for improvements which in legal contemplation he himself has ordered.

The claimed support for the trial court's theory rests on the fact that the lessee was in under a written lease in the form of a letter demising the premises for three years, the lessee to have rent free for the first year in exchange for his promise to repair the roof and put in windows and doors and to pay $20 per month for the remaining two years of the term. The defendant disputes the contention that the lessee was his agent within contemplation of that term as found in section 82-202, and, as already indicated, claims exemption from liability under the posting statute. The posting statute is unimportant if plaintiff's theory of agency in the lessee be correct. But, contingent on this court ruling against him on that theory, he asserts the posting statute is ineffective to aid defendant because he knew of the “intended construction, alteration or repair” from the time he signed the lease, and hence was required to post within three days thereafter which admittedly he did not do.

The two pertinent statutes read:

“82-202. Mechanics and materialmen- Lien. Every person performing labor upon, or furnishing materials to be used in the construction, alteration or repair of any mining claim, building, wharf, bridge, ditch, flume, tunnel, fence, machinery, railroad, wagon road or aqueduct to create hydraulic power, or any other structure, or who performs labor in any mining claim, has a lien upon the same for the work or labor done or materials furnished by each respectively, whether done or furnished at the instance of the owner of the building or other improvement, or his agent, and every contractor, sub-contractor, architect, builder, or other person having charge of any mining, or of the construction, alteration or repair, either in whole or in part, of any building or other improvement, as aforesaid, shall be held to be the agent of the owner for the purposes of this article. L.' 80, Ch. 16, § 2; C.L.' 97, § 2217; Code' 15, § 3319.”

“82-210. Land subject to lien-Notices to be posted. Every building or other improvement mentioned in the second section of this article, constructed upon any lands with the knowledge of the owner or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this article, unless such owner or person having or claiming an interest therein shall, within three days after he shall have obtained knowledge of the construction, alteration or repair, or the intended construction, alteration or repair, give notice that he will not be responsible for the same, by posting a notice in writing to the effect, in some conspicuous place upon said land, or upon the building or other improvement situated thereon. L.' 80, Ch. 16, § 11; C.L.' 97, § 2226; Code' 15, § 3327.”

The question before us is a troublesome one as indicated by the contrariety of view reflected in the decisions from other jurisdictions. See annotations in 23 L.R.A.(N.S.) 601, 609, supplemented in L.R.A.1917D 577, 580, and 79 A.L.R. 962.

As pointed out in the opinion in Stewart v. Talbott, 58 Colo. 563, 146 P. 771, Ann. Cas. 1916C, 1116, where is to be found an exhaustive review of the authorities, the question is so controlled by the language of the particular statute that decisions from other jurisdictions are of little value unless the statutes are similar. Indeed, as there stated, there is grave danger of confusion in employing the reasoning of decisions from jurisdictions based on statutes of different language and import.

[1] A careful review of our own decisions and some from other jurisdictions with similar statutes constrains us to hold that there is present in the instant lease no such language as warranted the trial court in declaring as a matter of law that the lessee was “agent” of the fee owner within the meaning of that term as employed in 1929 Comp. § 82-202. Mitchell v. McCutcheon, 33 N.M. 78, 260 P. 1086, 1087; McDowell v. Perry, 9 Cal.App.(2d) 555, 51 P.(2d) 117; Stetson-Post Mill Co. v. Brown, 21 Wash. 619, 59 P. 507, 75 Am.St.Rep. 862.

In Mitchell v. McCutcheon, supra, we observed that “inherently the relations of lessor and lessee, and of vendor and vendee, involve no agency.” We there said:

“We think, therefore, that we must consider it as the established law in this state that section 3319 [now 1929 Comp., § 82-202] is not to be interpreted by itself, but as modified by sections 3321 [now 1929 Comp., § 82-204] and 3327 [now 1929 Comp., § 82-210], not only when we have in question useful improvements placed upon lands, but when we are considering ordinary labor in the operation of a mine. So, in the case at bar, the liability of the lessor's interest was not established solely by a showing that appellees were employed by one in charge of mining operations for the lessee. It was to be inquired, further, whether the lessor had knowledge of the mining operations, and, if so, whether he posted the property for the protection of his interest.”

“Appellant requested the trial court to conclude, as a matter of law, ‘that the lessee and the agent of the lessee are not the agents of the lessor either at common law, or by statute, without more, so as to bring their employees within the lien statute of the state of New Mexico.’ This conclusion the trial court refused to make; and if it were clear that the judgment rested upon the converse of this proposition, error would be apparent.”

The converse of the proposition stated in the language last quoted from the Mitchell Case as applied to the lessee in the main is affirmed by appellee in the case before us. We there held that, if it were clear the judgment rested on the converse of the proposition stated, “error would be apparent.” There is here something more than the mere relationship of lessor and lessee from which to argue agency, in that the lease itself authorized the lessee to make the improvements in the nature of repairs and gave a rent adjustment in connection therewith. But this seems to represent no such active control and participation by the owner (lessor) in the improvement as to constitute the lessee his agent and bind the lessor's estate. Stetson-Post Mill Co. v. Brown, supra. Similarity between the language of the Washington statute and our own will be noted from a reading of the Stetson Case, supra.

The case most nearly in point coming to our attention is McDowell v. Perry, a recent decision of the District Court of Appeal of California, reported at 9 Cal.App. (2d) 555, 51 P.(2d) 117, 121. As pointed out in Ackerson v. Albuquerque Lumber Co., 38 N.M. 191, 29 P.(2d) 714, and again adverted to in Albuquerque Lumber Co. v. Montevista Co., 39 N.M. 6, 38 P.(2d) 77, we adopted the California Act of 1872 (Code Civ.Proc. § 1192), as amended in 1873-74 (page 410). And, while the California act has passed through various amendments since that time not adopted here, the controlling language so far as applicable to the case before us remains substantially the same. In the McDowell Case, a land purchase contract which obligated the vendee to drill an artesian well was involved. The vendee was to drill and construct an adequate irrigation system to irrigate forty acres of land and to plant said forty acres to avocados. The vendee contracted with the well driller to do the work, and an effort was made to subject the vendor's interest. The latter had duly posted a notice of nonresponsibility. The court rejected the claim of mechanic's lien, and among other things said:

“It must be apparent, we think, that so far as this...