Rolewitch v. Harrington

• Decision Date: 03 April 1906
• Citation: 20 S.D. 375,107 N.W. 207
• Parties: ROLEWITCH et al. v. HARRINGTON et al.
• Court: South Dakota Supreme Court

20 S.D. 375

107 N.W. 207

ROLEWITCH et al.

v.HARRINGTON et al.

Supreme Court of South Dakota.

April 3, 1906.

Appeal from Circuit Court, Hyde County.

Action by Louis Rolewitch and others against William M. Harrington and another. From a judgment for plaintiffs, defendants appeal. Affirmed.A. N. Van Camp and Wilbur S. Glass, for appellants. L. E. Whitcher and Crawford & Taylor, for respondents.

FULLER, P. J.

Pursuant to a valid contract between the real parties in interest, a well 1,600 feet deep was drilled and cased with iron tubing by plaintiffs on the farm of the defendant, William Harrington, and the ultimate question presented by this appeal is whether a mechanic's lien for the labor and material thus used in making such improvement is within the purview of the following statutory provision: “Every mechanic, or other person who shall do any labor upon, or furnish any materials, machinery or fixtures for any building, erection or other improvements upon land, including those engaged in the construction or repair of any work of internal improvement, by virtue of any contract with the owner, his agent, trustee, contractor, or subcontractor, upon complying with the provisions of this chapter, shall have for his labor done, or materials, machinery or fixtures furnished, a lien upon such building, erection, or improvement, and upon the land belonging to such owner, on which the same is situated, to secure the payment of such labor done, or materials, machinery, or fixtures furnished: Provided, that the provisions of this chapter shall not be construed to apply to claims or contracts for furnishing lightningrods or any of their improvements.” Section 696, Code Civ. Proc. Although water in a sufficient quantity for pumping was obtained, a flowing well could not be secured on account of the elevation but, in conformity with an alternative condition of his agreement, the defendant Harrington, who made the contract and owned the land in question, agreed to pay plaintiffs the full amount here sought to be recovered and there is no merit in the contention that the right to a lien, if such ever existed, was waived by an agreement that the claim should be secured by a mortgage on the premises. A cursory glance at the section of the statute immediately preceding the provision here quoted is sufficient to show that no agreement of that character is sufficient to defeat a mechanic's lien unless executed, and that nothing short of the actual taking of collateral security will operate as a waiver of the right. Section 695, Code Civ. Proc.

In this case the mortgage was neither given nor tendered and it would be contrary to the spirit of the statute and the general tenor of practically all the decisions to hold that plaintiffs lost their right to a lien by promising to take the mortgage which the defendant has always refused to execute. In the case of Baumhoff v. Railway Company, 171 Mo. 120, 71 S. W....