Smith v. Faris-Kesl Const. Co., Ltd.

• Decision Date: 27 March 1915
• Citation: 150 P. 25,27 Idaho 407
• Parties: J. W. SMITH, Respondent, v. FARIS--KESL CONSTRUCTION COMPANY, LTD., and EMMETT IRRIGATION DISTRICT, Appellants
• Court: Idaho Supreme Court

150 P. 25

27 Idaho 407

J. W. SMITH, Respondent, v. FARIS--KESL CONSTRUCTION COMPANY, LTD., and EMMETT IRRIGATION DISTRICT, Appellants

Supreme Court of Idaho

March 27, 1915

CANAL CONSTRUCTION-MECHANIC'S LIEN-CLASSIFICATION OF MATERIALS REMOVED-EXPERT TESTIMONY-CONFLICT OF EVIDENCE-CONTRACT-DISAGREEMENT BETWEEN PARTIES - ENGINEER'S ESTIMATES - FRAUD OR MISTAKE-STIPULATION IN CONTRACT-TENDER-INTEREST-ATTORNEYS' FEES-LACHES-LIS PENDENS-WAIVER OF LIEN-SUBROGATION-PLEADING-TITLE SUBJECT TO LIEN-COSTS.

1. The classification of different kinds of material removed in the construction of a canal was the subject of difference of opinion between expert witnesses, and a trial court is not required to adopt, as a whole, the estimates or opinions of certain witnesses as against those of other witnesses.

2. The record in this case examined and found to come well within the established rule in this state that where there is a substantial conflict in the evidence, the appellate court will not disturb the findings or judgment of a trial court.

3. It is a well-established rule of law that where the contract provides that an engineer or architect shall be the umpire or final arbitrator, between the parties should disagreement arise between them growing out of the contract, in the absence of fraud or mistake or such undue influence or collusion as amounts to fraud, in making the estimates of the amount of work performed under the contract the parties thereto are bound by such estimates.

4. In this case it was not stipulated in the contract that the estimates of the engineer should be final, binding or conclusive upon the parties; therefore such estimates were subject to attack for inaccuracy, and it was proper for the trial court to consider all the evidence offered and admitted touching the amount, character and classification of material handled by the respondent in the construction of the canal.

5. One of the appellants, before the commencement of the action tendered to the respondent, in full payment of the amount due to him, a sum of money which was less than was found to be due by the court, which tender was rejected. Since the said sum was tendered, not as a partial payment, but as settlement in full, and since it was less than the amount found to be due by the court, such tender did not estop the accumulation of interest upon any part of the debt.

6. While the appellant construction company which employed the respondent does not own the property against which the lien is sought to be foreclosed, it owes the money sued for, and it was by reason of its failure to pay its debt that the expense of employing respondent's attorneys was incurred. The attorneys' fee is an incident of the judgment against said appellant, and it is liable therefor under sec. 5121 Rev. Codes.

7. When an issue of laches is presented by the answer of one of the appellants and it appears from the record that the trial of the case was commenced the next day after said appellant filed its answer; that its codefendant made no complaint of the delay which had theretofore occurred and that no motion to dismiss the action for failure to prosecute was made; and when the record does not disclose that said delay was due to the fault of the respondent, nor that either of the appellants was injured thereby; and when the record fails to disclose any fact from which it may be inferred that it was ever the intention of the respondent to abandon his claim of lien, the finding of the trial court that respondent was not guilty of laches will not be disturbed.

8. Lapse of time alone is not sufficient to justify a dismissal of the action. Where a defense of laches is sustained, it is upon the theory that the delay, together with other circumstances in the case, satisfactorily shows that the cause of action has been abandoned, or because it satisfactorily appears that it has resulted in injury to someone not responsible for the delay, and unless it does so appear, or if the theory, or presumption, is overcome by other facts and circumstances, the defense should not prevail.

9. Sec 4142, Rev. Codes, provides for the filing of a lis pendens in actions affecting the title to or right of possession of real property, but this is necessary only for the purpose of giving record notice to subsequent purchasers and encumbrancers of the property who have not actual knowledge of the action, or of the claim upon which it is based, and, where a subsequent purchaser has full knowledge of a mechanic's lien in a suit to foreclose such lien, a contention that in order to charge such purchaser with notice of the pendency of the suit a lis pendens must be filed cannot be sustained.

10. In order to establish a waiver of lien the intention to waive must clearly appear, and such waiver will not be presumed or implied, contrary to the intention of the party whose rights would be injuriously affected thereby unless by his conduct the opposite party was misled to his prejudice into the honest belief that such waiver was intended or consented to. The facts in this case considered and held not to constitute a waiver of the lien but only the priority thereof to a certain mortgage.

11. Facts must be alleged upon which a claim of subrogation is based, and where no such facts appear in the pleadings, it is not error for the trial court to refuse to grant such relief.

12. A mechanic's lien extends only to such right, title and interest as the owner, at whose instance the improvement was made, had in the property at the time the lien attached, and a purchaser at a sale to satisfy said lien can acquire no greater right, title or interest than that.

13. In this case the lien attached to such right, title and interest as the Canyon Canal Company, Limited, had in the property at the time such lien attached to it, subject to the prior lien, if any, now existing and to the same extent does exist, of a certain mortgage given to secure the payment of bonds of said canal company in the sum of $350,000.

14. The right to recover costs is statutory, and the prevailing party cannot recover his costs unless he conform to the provisions of the statute.

15. The phrase, "decision of the court," as used in sec. 4912, Rev. Codes, refers to a formal decision, or findings of fact, conclusions of law and decree, or judgment, and a memorandum of costs and disbursements filed prior to the making of such formal decision is prematurely filed, and a motion to strike the same from the files upon that ground should be sustained.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Suit to foreclose mechanic's lien. Judgment for plaintiff. Modified.

Order reversed, with instructions. No costs upon appeal will be allowed.

Martin & Cameron and Perky & Crow, for Appellant Faris-Kesl Construction Co.

Sullivan & Sullivan and Richards & Haga, for Appellant Emmett Irrigation Co.

A judge cannot make a finding inconsistent with the claims and proofs of both parties and inconsistent with the evidence in the case. (King v. Bendell Com. Co., 7 Colo. App. 507, 44 P. 377; Robeson v. Miller, 4 Colo. App. 313, 35 P. 880; State ex rel. Kimbrell v. People's Ice Storage etc. Co., 246 Mo. 168, 151 S.W. 101.)

In order to charge purchasers with notice of the pendency of an action it must be diligently prosecuted, and in addition under our statutes notice of lis pendens must be filed where the suit affects real property. (Bybee v. Summers, 4 Ore. 354, 360; Taylor v. Carroll, 89 Md. 32, 42 A. 920, 44 L. R. A. 479; Bridger v. Exchange Bank, 126 Ga. 821, 115 Am. St. 118, 56 S.E. 97, 8 L. R. A., N. S., 463; Hayes v. Nourse, 114 N.Y. 595, 11 Am. St. 700, 22 N.E. 40; Watson v. Wilson, 2 Dana (Ky.), 406, 26 Am. Dec. 459; Richardson v. White, 18 Cal. 102; Warnock v. Harlow, 96 Cal. 298, 31 Am. St. 209, 31 P. 166.)

A mechanic, contractor or laborer may waive his lien, and respondent by his contract waived his entire lien and not merely such priority as he might have had over the mortgage. (27 Cyc. 262, 264; 20 Am. & Eng. Ency. of Law, 494; Bloom, Mechanics' Liens, 627, 630; Idaho Gold Min. Co. v. Winchell, 6 Idaho 729, 96 Am. St. 290, 59 P. 533; Bowen v. Aubrey, 22 Cal. 566.)

There is also an implied waiver of the lien by the acceptance of the guaranty of Trowbridge & Niver Company. (Dwyer v. Salt Lake City Copper Mfg. Co., 14 Utah 339, 47 P. 311; 20 Am. & Eng. Ency. of Law, 496; Brown v. Williams, 120 Pa. St. 24, 6 Am. St. 689, 13 A. 519; Bailey v. Adams, 14 Wend. 201; Kankakee Coal Co. v. Crane Bros. Mfg. Co., 138 Ill. 207, 27 N.E. 935; Dutton v. New England Mutual Fire Ins. Co., 29 N.H. 153; Sprague v. Provident Sav. & Trust Co., 163 F. 449, 90 C. C. A. 71.)

The franchise and rights of a quasi-public corporation, owing important duties to the public, and the property vested in it necessary for their use and enjoyment and the accomplishment of the purposes for which it was created, constitute an entirety, and, in the absence of special statutory authority are not subject to be seized and sold on execution or for mechanics' liens. (Chicago & N.W. Ry. Co. v. Forest County, 95 Wis. 80, 70 N.W. 77; Chapman Valve Mfg. Co. v. Oconto Water Co., 89 Wis. 264, 46 Am. St. 830, 60 N.W. 1004; Plymouth Ry. Co. v. Colwell, 39 Pa. St. 337, 80 Am. Dec. 526; Guest v. Merion Water Co., 142 Pa. St. 610, 21 A. 1001, 12 L. R. A. 324; Buncombe County Commrs. v. Tommey, 115 U.S. 122, 5 S.Ct. 1186, 29 L.Ed. 305; Pittsburg Testing Lab. v. Milwaukee etc. Light Co., 110 Wis. 633, 84 Am. St. 948, 86 N.W. 592; Elliott on Railroads, 2d ed., sec. 1066; Thompson on Corp., 2d ed., sec. 3395; 20 Am. & Eng. Ency. of Law, 2d ed., 296; Phillips on Mechanics' Liens, secs. 180, 181; Boisot on Mechanics' Liens, secs. 188,...