Ruppert v. Edwards

• Decision Date: 29 March 1950
• Docket Number: No. 3597,3597
• Citation: 216 P.2d 616,67 Nev. 200
• Parties: RUPPERT v. EDWARDS.
• Court: Nevada Supreme Court

Page 616

216 P.2d 616

67 Nev. 200

RUPPERT v. EDWARDS.

No. 3597.

Supreme Court of Nevada.

March 29, 1950.

Taylor & Gubler, of Las Vegas, for appellants.

George E. Franklin, Jr., of Las Vegas, for respondent.

HORSEY, Chief Justice.

In the instant case the defendants and appellants have appealed from the judgment and from the District Court's order denying their motion for a new trial.

It appears advisable, in order clearly to present the factual situation and the questions of law involved, that we embody herein, first, the opinion of the court below, which is as follows 'The complaint in this action, after reciting the residence of the plaintiff and defendants, sets out that on or about the 10th day of July, 1947, the said defendants caused to be filed in the Office of the County Recorder of Clark County, Nevada, a notice of lien against certain real property of the plaintiff described in the complaint. It appears that the lien arose out of the alleged failure of the plaintiff to pay the defendant for certain labor and material incurred in the installation of certain plumbing work in and about the premises of the plaintiff, that said work was done pursuant to a contract entered into by and between the plaintiff and defendant, that the lien purported that there was a balance due of $2382.81, that the sum of money remained unpaid and due the defendants from the plaintiff. Thereafter negotiations were entered into by and between attorneys of the plaintiff and defendant, George E. Franklin, Jr., Esquire, appearing as attorney for the plaintiff, and Taylor and Gubler, Esquires, attorneys for the defendant. It appears that on or about the 24th day of October, 1947, the plaintiff tendered to the said firm of attorneys, Taylor and Gubler, as the agent of the defendants, the sum of $1900 in full satisfaction and accord of all claims of whatever kind and nature which existed by and between said defendant and said plaintiff by reason of said work and material furnished and in satisfaction of said lien recorded in the Office of the County Recorder of Clark County, Nevada. It appears that at that time, to-wit, on the 24th day of October, 1947, it was agreed that the defendants would execute appropriate release discharging mechanic's lien heretofore filed by said company against the property of the plaintiff, that no release was filed and as a result this action was brought in accordance with Section 3750, Volume 2, Nevada Compiled Laws 1929, said section reading as follows:

"Satisfaction And Discharge Of Lien. The claimant of any such lien filed as aforesaid, on the payment of the amount thereof, together with the costs incurred and the acknowledgment of satisfaction, shall, at the request of any person interested in the property charged therewith, enter or cause to be entered an acknowledgment of satisfaction of the same (of) record within ten days from the request, and for failure of the claimant to enter satisfaction within the time, shall forfeit and pay to the person making the request the sum of twenty dollars per day until the same shall be entered, to be recovered in the same manner as other debts.'

'Under said section the plaintiff claims that 518 days had elapsed since the said defendants, in response to the request of the said plaintiff, promised to enter acknowledgment of satisfaction, and that the said defendants had, during the said 518 days period, failed and refused, and continued to fail and refuse, to cause such acknowledgment of satisfaction to be entered in the manner prescribed by law. The complaint therefore prayed damages for each of said 518 days at the rate of $20 per day, in accordance with the statute, or a total of $10,360 in costs.

'To this complaint the defendant filed answer admitting the allegations of paragraphs 1, 2 and 3 of the complaint, and they set up as a defense denying paragraphs 5, 6, 7, 8, 9 and 10 of the complaint, denying in their answer that the instrument that was filed purported to be a lien, was not, in fact, a notice of lien at all.

'From the evidence it appears that a contract was entered into by and between the parties, plaintiff and defendants, for the performance of certain labor and the furnishing of certain material in the installation of certain plumbing in the premises belonging to the plaintiff, that the plumbing to be done in accordance with the contract was completed, in accordance with the testimony of the defendants, and thereafter the lien was filed in the office of the County Recorder of Clark County, Nevada, on the 10th day of July, 1947.

'On the 23rd day of August, 1947, a letter was written to the plaintiff by Mr. V. Gray Gubler, of the firm of Taylor and Gubler, in which he called to the attention of the plaintiff the fact that there was a balance due his client, the defendant in the sum of $2382.81 plus interest and attorneys fees, as provided in the contract with instructions that they would file suit unless satisfactory arrangements for settlement could be worked out and in said letter it is stated 'otherwise it will be necessary for us at the earliest possible time thereafter to file suit for foreclosure of mechanic's lien on your motel propety'. It will be seen by this that notwithstanding their answer denying that the instrument was a lien, the firm did recognize it as a lien on the 23rd day of August, 1947, as set out in said letter.

'The Court is of the opinion that the instrument filed was a lien, and now so holds. Again, in a letter from the A. R. Ruppert Plumbing Company, by Thomas J. Palmer, the following language is used 'Also, we will instigate foreclosure proceedings on the mechanic's lien now recorded against the property'. Thus it will be seen that the company itself deemed that the instrument filed was a lien.

'Pursuant to the said lien, and pursuant to the letter of Taylor and Gubler to the plaintiff, through his attorney, George E. Franklin, Jr., with Taylor and Gubler, by and through V. Gray Gubler, attorney for the defendants, and the plaintiff paid to the said V. Gray Gubler by and through his attorney, George E. Franklin, Jr., the sum of $1900 and received from said V. Gray Gubler, as agent for the said defendant, a receipt acknowledging receipt of two checks, aggregating $1900, and agreeing that as soon as said checks, and each of them, had cleared, the said defendant company would execute appropriate release discharging mechanic's lien filed by said company against the property of the said plaintiff.

'Again it will be seen that the attorneys representing the defendant recognized the instrument so filed as a lien.

'The defendants raised the question that the agreement was as soon as the said checks, and each of them, had cleared, the company would execute appropriate release discharging mechanic's lien heretofore filed by said company against the property of the plaintiff. This receipt was dated October 24, 1947, and the question now before the Court is whether or not the two checks constitute payment.

'In the opinion of the Court the two checks would constitute payment and settlement in full of said claim, and thereafter within ten days, as set out in the statute, the defendant itself, or through its attorneys, should have entered satisfaction and discharged said lien.

'Then again let us presume that the words of the letter or receipt are to be strictly construed, that is, the checks and each of them should clear before the obligation of discharging the mechanic's lien would attach to the defendant. One check for $300 was drawn on the First National Bank of Nevada and was dated the 23rd day of October, 1947, and shows it was paid on the 24th day of October, 1947. The other check for $1600 was dated the 23rd day of October, 1947, and cleared through the National Bank of Nevada on October 27, 1947. Thus it will be seen that the amounts were paid within ten days after they were tendered as payment of the claim.

'The Court is of the opinion that within ten days after the 24th day of October, 1947, the defendant having during that time been paid in full of all demands, should have entered an acknowledgment of satisfaction of the lien of record, said request having been made so to do by the plaintiff and an agreement having been made by the defendant so to do on the 24th day of October, 1947.

'From the evidence it appears that the lien was filed July 10, 1947, that the lien was satisfied on October 24, 1947. Suit could have been brought on or before six months after July 10, 1947, or on or before January 10, 1948, and if suit had not been brought on or before said date, then the lien would have been of no value. In accordance with the statute the lien should have been discharged ten days after October 24th, or November 3, 1947, and inasmuch as the lien itself would have expired on January 10, 1948, two months and seven days, or 67 days, elapsed after the defendant was requested by plaintiff to release said lien, therefore the Court is of the opinion that there is due the plaintiff for the failure of the defendant to enter an acknowledgment of satisfaction of said lien in the sum of $1340.

'Judgment will be entered in favor of the plaintiff and against the defendant for the sum of $1340, together with costs and interest from this date until paid.

'Dated this 28th day of September, 1949.

'A. S. Henderson

'District Judge.'

It is apparent that there is little, if any, serious controversy or contention relative to the essential facts. The entire controversy revolves around the proper interpretation and construction of certain principles of law which are applicable to the factual situation involved in the instant case. Thus, it is believed that the following will serve to bring out clearly the legal situation with which the court is confronted herein. We will, therefore, copy, in part, alleged error No. 1, the principal of the appellants' alleged six assignments of error. Such alleged error No. 1 is captioned, 'The...