Rogers-Templeton Lumber Co. v. Welch

• Citation: 184 P. 838,56 Mont. 321
• Decision Date: 17 October 1919
• Docket Number: 4032.
• Parties: ROGERS-TEMPLETON LUMBER CO. v. WELCH et al.
• Court: Montana Supreme Court

184 P. 838

56 Mont. 321

ROGERS-TEMPLETON LUMBER CO. v. WELCH et al.

No. 4032.

Supreme Court of Montana

October 17, 1919

Appeal from District Court, Chouteau County; John W. Tattan, Judge.

Action by the Rogers-Templeton Lumber Company against W. D. Welch doing business under the firm name and style of W. D. Welch & Co., and others. From a judgment in its favor for only part of the relief demanded, plaintiff appeals. Reversed and remanded.

I. W Church and Fletcher Maddox, both of Great Falls, for appellant.

O. W Belden, of Lewistown, and McKenzie & McKenzie, of Great Falls, for respondents.

COOPER J.

Action to foreclose a mechanic's lien for materials alleged to have been furnished and used in the construction of a store building upon lots 17 and 18, in the town of Geraldine, Chouteau county, Mont.

The complaint alleges the purchase, by defendant Welch, of materials for use in the construction of said store building of the value of $2,661.91; that the items so furnished and used constituted an open account between the plaintiff and defendant Welch from the 2d day of August, 1914, to the 16th day of January, 1915, inclusive; that said amount is still due and unpaid; that a mechanic's lien covering all of said items was filed within 90 days after the date of the furnishing of the last item thereof; and that the defendants, other than Welch, claim some interest in the property involved, as attaching creditors or incumbrancers. The answer of Welch consists of general denials and affirmative matter to the effect that on or about August 1, 1914, an agreement was entered into between plaintiff and himself to furnish material to build the store building described in the complaint, "for a stated sum"; that the last item thereof was delivered October 10th, and no material was furnished by plaintiff under that agreement after said last-named date; that thereafter, on or about October 15, 1914, said account was closed, and plaintiff and Welch "then and there had an accounting and settlement between them for said materials, and said account was then and there settled, allowed, and agreed to "as being due from defendant for said material.

Defendants Gies, Flanagan, McKenzie, and Belden filed a separate answer, consisting of general denials and an assignment to them as trustees for the benefit of creditors. The plaintiff filed replies, denying all of the affirmative allegations contained in the answers. The cause was tried to the court without a jury.

At the trial, plaintiff offered in evidence the notice of lien to which was attached a statement of account containing the items upon which the lien is based. To its receipt in evidence the defendants objected upon the ground that it was a statement made by G. W. Bulmer, assistant secretary of the plaintiff company; that it did not state that the same was made for plaintiff; that it did not contain a statement "that the matters set forth in the account, and the description of the property, are true; that it recites that all the facts that are stated in the notice and in the statement are true; but it does not state that the matters stated in the lien are true as required by law." This objection, when made, was overruled; but the lien finally was stricken out, on motion of defendants, upon the ground that it was not verified in accordance with the statute, and that it was "not shown by competent proof" that "any of the items mentioned in the lien as having been furnished in the months of December and January entered into and became part of the construction of the building against which the lien is claimed." Plaintiff, at the same time, moved the court to strike out "all the evidence introduced under the new matter pleaded in the answer as defense, alleging an account stated as of October 10, 1914." A stipulation was entered of record "between counsel and the court" that the motions might be passed upon at the time of the rendition of the final decision by the court. Written requests for findings were also presented to the court for adoption. In the final judgment, plaintiff's motion to exclude all evidence in support of the new matter contained in defendants' answers was granted, as well as defendants' motion to "strike the lien from the record." The court found in favor of the plaintiff and against defendant Welch for the full amount claimed in the complaint, and entered judgment accordingly. The appeal is from the judgment.

Upon this record we are to review the proceedings had in the court below resulting in the judgment appealed from. Appellant asserts that twelve errors were committed by the trial court, culminating in the exclusion of plaintiff's lien claim. If the rejection of plaintiff's claim of lien was error, the other specifications need not be noticed.

In ruling as it did, the trial court doubtless had in mind the rule of construction several times applied by this court to section 7291 of the Revised Codes, to the effect that, in the pursuit of its purely statutory benefits, the various steps necessary to secure and perfect the lien are indispensable. Wertz v. Lamb, 43 Mont. 477, 117 P. 89; Crane & Ordway Co. v. Baatz, 53 Mont. 438, 164 P. 533. Is the lien notice deficient or defective? We think not. The statements in the affidavit are in full accord with the requirements of section 7291, and evince a faithful adherence to all its commands.

Respondents' counsel, in their brief, however, say they are unable to distinguish any difference between the affidavit, which was obviously made on information and be-belief, and an affidavit that recites that it was so made, citing Western Plumbing Co. v. Fried, 33 Mont. 7, 81 P. 394, 114 Am. St. Rep 799. In that case, the affidavit merely stated:

That affiant "is president of the [plaintiff] company, *** and as such makes this affidavit; that he has read the foregoing claim of lien, knows the contents thereof; and that the matters and things therein stated are true, to the best of his knowledge, information, and belief."

Of that affidavit, Mr. Justice Holloway, speaking for this court, said:

"The statute provides that the lien is made up of: First, the account; second, the description of the property; and, third, the affidavit. The account is required to be a just and true one, showing the amount due the claimant after allowing all credits, and there must be a correct description of the property to be charged with the lien. *** Therefore, if there was no affidavit attached to the account and description, there was in fact no lien, and the court properly excluded the pretended one offered in evidence."

Indeed, we may here add the suggestion that an affidavit so worded is in no sense equivalent to a declaration under oath that the matter contained therein is true.

In the affidavit before us, Bulmer swears positively that he is assistant secretary of the plaintiff corporation; that the statement of account of the lumber and materials is a just and true account, and they were furnished and delivered for the purpose of being used in the building in question; that the notice contains a correct description of the property to be charged with said lien; and that all the facts therein stated are true. What more than a literal compliance with the statute could be demanded? Certainly, it is not to be presumed that perjury has been committed in its making. In that respect, however, the rights of the owner are effectively safeguarded by the pains and penalties the perjury statute imposes upon those who violate its provisions. As was said by Mr. Justice Sanner, in Crane & Ordway Co. v. Baatz, supra:

"The account must be a just and true one, 'after allowing all credits,' and must be verified as such. The purpose of the affidavit is clear enough. It is not merely to entitle the lien claim to record, but to furnish a sanction for it in such an oath as will subject the affiant to punishment for perjury if it be false in material particulars."

The statute having been scrupulously followed, the paper in question is to be regarded as showing prima facie that a valid lien was filed. As was said by Mr. Justice Holloway, in Wertz v. Lamb, supra:

"Our present Code provision is substantially the same as section 6, c. 40, p., 510, of the Laws of 1871-72, and in Black v. Appolonio, 1 Mont. 342, this court in construing that section said: 'It appears to us that all our statute requires is that a person wishing to avail himself of the benefits of it should honestly state his account.' And this has been accepted as a correct interpretation ever since. Western Iron Works v. Montana 'P. & P. Co., 30 Mont. 550, 77 P. 413; Mills v. Olsen, 43 Mont. 29, 115 P. 33."

See, also, Mc Intyre v. MacGinniss, 41 Mont. 87, 98, 108 P. 353, 137 Am. St. Rep. 701.

Plaintiff's claim of lien was therefore improperly excluded.

For another reason this case must be remanded for further proceedings. Section 6763, Revised Codes, provides as follows: "Upon a trial of a question of fact by the court, its decision or findings must be given in writing and filed with the clerk within twenty days after the case is submitted for decision."

The...