State Bank of Chicago v. Plummer

• Decision Date: 06 January 1913
• Parties: STATE BANK OF CHICAGO v. PLUMMER et al.
• Court: Colorado Supreme Court

129 P. 819

54 Colo. 144

STATE BANK OF CHICAGO v. PLUMMER et al.

Supreme Court of Colorado, En Banc.

January 6, 1913

Error to District Court, Teller County; James Owens, Judge.

Action by John T. Plummer and others against the State Bank of Chicago, as trustee, and another. Judgment for plaintiffs and the bank brings error. Affirmed in part, and reversed and remanded in part for new trial as between plaintiff named and the bank.

Charles J. Hughes, Jr., deceased, Henry C. Cassidy of Colorado Springs, and Barnwell S. Stuart, of Denver, for plaintiff in error.

Henry Trowbridge, of Denver, for defendants in error.

HILL J.

The defendants in error, John T. Plummer, the Morrell Hardware Company, and J. M. Parfet, instituted separate suits in the district court of the city and county of Denver to foreclose mechanics' liens against certain property of the Cripple Creek & Pueblo Railway Company and the Gold Exploration &amp Tunnel Company. This property is in Teller county. To these actions the above-named owners, the State Bank of Chicago, as trustee, and W. H. Spurgeon, were made parties defendants. Personal judgments by default were procured against the owners of the property before answer by the bank and before the time for it to answer had expired; it being a nonresident. After its appearance, and upon its application, the cases were transferred to the district court of Teller county, where they were consolidated for trial, pertaining to the issues raised by the bank, which included the amount and validity of the liens, and, if valid, the question of priority between them, and the bank's lien evidenced by a mortgage upon the same property executed by the railway company in favor of the bank as trustee for certain bondholders. The judgments were in favor of the several lien claimants decreeing the liens of Plummer and the Morrell Hardware Company superior to that of Parfet, and all three superior to the lien of the bank to the property. Foreclosure was ordered accordingly. The bank, as trustee, brings the case here for review upon error.

One hundred and thirty-two assignments of error are presented. Those necessary to consider can be grouped into a few general contentions, and will be disposed of accordingly.

It is claimed that the court erred in allowing the plaintiff Parfet to make certain amendments to his complaint during the trial. We cannot agree with counsel that the amendments added new causes of action. The action as against the bank was to foreclose a mechanic's lien for a certain amount upon certain property in which it claimed an interest. The amounts covered by the amendments were included in this plaintiff's lien statement. The amount for which the lien was sought was greater in the original complaint than it was after the amendments were added. The amendments are now a part of the complaint; and, as the case must be reversed for reasons hereafter stated, prior to a new trial the bank will have had ample time to make any preparation for any defense it may have thereto. This will eliminate any question concerning surprise or necessity for delay. Prior to the trial the bank made a written demand upon the plaintiff Parfet for a bill of particulars covering each and every cause of action set forth in his complaint. This demand was not complied with, upon account of which the bank objected to the introduction of any testimony on Parfet's behalf. It also moved to strike all of his testimony. The objection and motion were overruled. The bank alleges that his failure to furnish a bill of particulars was prejudicial error, upon account of which it was greatly handicapped in presenting its defense; that the provisions of general section 69, Revised Code 1908, are applicable, as well as mandatory. Upon behalf of Parfet it is claimed that, while the demand was made upon the entire cause of action, the objection was limited to the first three causes concerning which, by order of the court, he had previously been required to subdivide upon the bank's motion; that the motion to strike was too broad, because it jointly attacked both first and sixth causes; that the complaint as amended, as to the first three causes, contained as particular an itemized statement as could be required; also that section 69, supra, does not apply; that the bank's relief, if any, should have been by motion under general section 66, Revised Code 1908.

It appears to be the general rule in actions to foreclose mechanics' liens, where the work was to be for a certain contract price, that no bill of particulars is necessary. Montpelier Light, etc., Co. v. Stephenson, 22 Ind.App. 175, 53 N.E. 444; Stephenson v. Ballard, 50 Ind. 176; White v. West, 27 Misc. 397, 58 N.Y.S. 841; Menzel v. Tubbs, 51 Minn. 364, 53 N.W. 653, 1017, 17 L.R.A. 815.

This general rule applies to part of Parfet's causes of action; but, as to a part of the first and sixth, we are of opinion that the bank was entitled to more definite information. The first is based upon an agreement that he was to be paid a certain amount per month and his expenses. The sixth is for services rendered and material furnished. These expense and material items fall within the rule calling for detailed information.

We see no necessity for determining whether it should be secured under section 66 or 69, Revised Code 1908, for in either event, in view of a new trial, opportunity should be granted to plaintiff Parfet to furnish this information and to introduce evidence to support it. It is claimed that no lien can attach for the so-called Parfet expense account of $1,500, which it is alleged was allowed under his first cause of action. The total amount allowed Parfet was much smaller than claimed. Much evidence was admitted under the statement that, as the trial was to the court, it would admit the evidence and consider only that which it deemed competent. For these reasons, it is impossible to ascertain the items which went to make up the $27,909.17, for which Parfet was decreed a lien. We might assume that this amount was awarded for other items than this expense account; there is evidence to sustain this assumption; but in view of a new trial, for other reasons, we think it competent to pass upon the contention concerning this claim.

The complaint alleges, and the evidence discloses, that plaintiff Parfet was employed as superintendent, engineer, and draftsman, in the construction of the property, at an agreed price of $250 per month and his expenses. Under these circumstances, the expenses were part of the compensation to be paid him for his work while acting as superintendent, engineer, and draftsman; therefore it is just as much a part of his compensation as the $250 per month was. Lybrandt v. Eberly, 36 Pa. 347. In considering the items that are proper to be included in this expense account as lienable (in view of the different views of counsel), it is proper to state that they should be limited to his expenses as superintendent, draftsman, or engineer in the construction of the property. R. A. G. & S. M. Co. v. Bouscher, 9 Colo. 385, 12 P. 433.

It is claimed that none of the plaintiffs are entitled to a lien against the property involved; or, if they are, they are inferior to the rights of the bank. The facts presenting these propositions are substantially as follows: Upon December 3, 1902, the railway company gave a mortgage to the bank upon all of its property to secure its bonds in the sum of $250,000. This mortgage was filed for record in the office of the county clerk and recorder of Teller county December 13, 1902; the bonds were sold; the money realized was used principally in paying the expenses of extending a tunnel and laterals and placing railroad tracks therein, which one or both of the defendants (the tunnel and railway companies) were engaged in doing. This was to be a part of a railroad to be constructed by the railway company. The prospective terminal points of the railroad were Cripple Creek and Pueblo. The tunnel was to be utilized for railroad purposes.

Prior to the execution and recording of the mortgage, Parfet was employed as superintendent of the work by the railway company. In this capacity he performed services in superintending the work of extending the tunnel, in connection with the construction of the railroad commencing in November, 1902, continuing to March 10, 1904. This was at an agreed price of $250 per month and his expenses. During this period, he incurred considerable expenses, which were unpaid, as well as the greater amount of the $250 per month agreed upon. On March 10, 1904, he entered into a written agreement with the railway company to construct 300 feet of tunnel at a specified sum per foot. Between that date and July 1, 1905, he entered into similar contracts to construct other portions of the tunnel, including several laterals connecting with the main tunnel, during which period, at the request of the railway company, he furnished materials and supplies which were used. In addition, he also performed labor and services in constructing the railroad and tunnel in the way of superintending such work. To secure and enforce a lien for the amount still due him for services rendered and material furnished during this entire period, the plaintiff Parfet, on July 3, 1905, filed a lien statement in the office of the county clerk and recorder of Teller county. There is abundant testimony to the effect that there was no cessation of labor on the tunnel and railroad for period of 30 days from prior to December 1, 1902, to July 1, 1905.

The Morrell Hardware Company's account is for material and supplies furnished at different stages in the progress of the work of constructing the tunnel, laterals, and railroad; some furnished to the railway and tunnel...