Steel v. Argentine Min. Co.

• Decision Date: 26 November 1895
• Citation: 4 Idaho 505,42 P. 585
• Parties: STEEL v. ARGENTINE MINING COMPANY
• Court: Idaho Supreme Court

42 P. 585

4 Idaho 505

STEEL v. ARGENTINE MINING COMPANY

Supreme Court of Idaho

November 26, 1895

MECHANIC'S LIEN-WHEN NOT ENFORCEABLE-OPTION TO PURCHASE.-Where, in an action to foreclose mechanic's lien, it conclusively appears from the record that credit was given to the party in possession of the property under an option to purchase, and not to the owner of the property, such liens will not, in the failure of the party in possession, and to whom credit was given, to fulfill his contract, and avail himself of the option, be enforceable against the owner or his property.

SAME-DEFECTIVE NOTICE OF LIEN.-A statement in the notice of lien that the materials furnished, or the work and labor performed, were so furnished and done and performed upon a certain mining claim "the property of the defendant," is not a sufficient compliance with the provisions of section 5130 of the Revised Statutes of Idaho.

(Syllabus by the court.)

APPEAL from District Court, Shoshone County.

Judgment reversed, with costs.

C. W Beale, for Appellant.

This suit having been commenced in August, 1892, the provisions of title 4, sections 5125 to 5139, inclusive, of the Revised Statutes, constitute the law, then in force, applicable to the case at bar. To entitle Receiver Steel to enforce a lien against the property of the defendant company for material furnished, he must not only allege and prove that the machinery and materials were used in the construction, alteration or repair of said claim, but that they were by the express terms of his contract with the Argentine Mining Company, furnished to be used in that manner thereon. (Rev. Stats., sec. 5125; Bottomly v. Rector etc. of Grace Church, 2 Cal. 90; Houghton v. Blake, 5 Cal. 240; Holmes v. Richet, 56 Cal. 307, 38 Am. Rep. 54; Hunter v. Blanchard, 18 Ill. 318, 68 Am. Dec. 547; Roebling Sons Co. v. Rear Valley Irr. Co., 99 Cal. 488, 34 P. 80.) Notice of mechanic's lien which does not state unequivocally and plainly the terms, time given and conditions of the contract under which the materials are furnished, is fatally defective. (White v. Mullins, 3 Idaho 434, 31 P. 801; Hooper v. Flood, 54 Cal. 218.) One in possession under a verbal or written contract of purchase cannot subject to a mechanic's lien either the building or the land, to the prejudice of the legal owner, even where the statute contemplates a remedy against either the land or the building. (Worden v. Hammond, 37 Cal. 61; Wager v. Brisco, 38 Mich. 587; Wilkins v. Litchfield, 69 Iowa 465, 29 N.W. 447; Dierks v. Walrod, 66 Iowa 354, 23 N.W. 751; People's etc. Assn. v. Spears, 115 Ind. 297, 17 N.E. 570; Jones on Liens, sec. 1247.)

W. W. Woods and Richardson & Williams, for Respondents.

If the complaint should be held to be defective in not stating that the materials were furnished to be used in the mine, we contend that such defect is cured by the introduction without objection on the part of the de-defendant of competent testimony on that subject. In support of our right to supply such a defect and to have the complaint considered as amended by the appellate court we cite the following authorities: 1 Ency. of Pl. & Pr. 578, 582, 607, 611, and cases cited; Thomas v. Nelson, 69 N.Y. 118; Hodge v. Sawyer, 34 Wis. 397; Davis v. Chicago etc. Ry. Co., 83 Iowa 744, 49 N.W. 77; Drew v. Hicks (Cal.), 35 P. 563; Valencia v. Couch, 32 Cal. 339, 91 Am. Dec. 589.) As to the sufficiency of the liens, we cite the court to Hills v. Olig, 63 Cal. 104; Jewell v. McKay, 82 Cal. 144, 23 P. 139; Jones on Liens, sec. 1405; Malone v. Big Flat Gravel Min. Co., 76 Cal. 578, 18 P. 772.

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

On the eleventh day of November, 1891, the appellant corporation was the owner of certain mining property situated in Shoshone county, Idaho and on that day made and entered into the following contract, in writing, with one John H. Davey and Frank J. Davey (Exhibit "A"):

"This agreement, made and entered into this eleventh day of November, 1891, by and between the Argentine Mining Company a corporation, duly organized and existing under the laws of the state of Oregon, party of the first part, and John H. Davey and Frank J. Davey, of Wardner, Idaho parties of the second part, witnesseth: That the party of the first part, in consideration of the sum of one dollar to it in hand paid, the receipt whereof is hereby acknowledged, does hereby covenant and agree that the parties of the second part may enter into and upon that certain mining claim known as and called the 'Argentine Lode,' situated on Bonanza gulch, a tributary of the south fork of the Coeur d'Alene river, in Evolution mining district, county of Shoshone, and state of Idaho and to mine and extract therefrom, and ship and sell, the ores therein contained, for and during the term of eight months from and after the date of this agreement, which date shall be deemed the time when said parties of the second part shall take possession thereof. And the parties of the first part do further agree that if the said parties of the second part shall, within four months of the time of taking possession of said mine, pay and deposit in the Exchange National Bank of Spokane, state of Washington, to the credit of the party of the first part, the sum of thirteen thousand dollars ($ 13,000), and shall also, within eight months of the time of taking possession of said mine, pay and deposit in said bank, to the credit of the party of the first part, the further sum of $ 13,000, and shall pay into said bank the further sum of ten thousand dollars ($ 10,000), whenever the party of the first part shall deposit in said bank a receiver's receipt showing that the party of the first part has entered said mining claim at the United States land office at Coeur d'Alene, Idaho then, upon said payments being made, the party of the first part will make, execute, and deliver to the parties of the second part a good and sufficient deed conveying to the parties of the second part the said mining claim. It is further agreed by and between the parties hereto that the net profits of the working of said mine, and the sale of ores, by the second parties, shall be deposited in the said Exchange National Bank of Spokane, state of Washington, where a triplicate of this agreement is deposited, and that such net proceeds so deposited, shall apply upon and be deemed a payment to the amount thereof upon this agreement, and to be applied to the first payments becoming due thereon; it being understood and agreed between the parties hereto, however, that, in arriving at said net profits, only the actual cost of mining, shipping and treatment of the ores shall be deducted from the gross value thereof, and that the balance of the proceeds shall be deemed the net profits; in other words, it being the intent and meaning of this clause that any work commonly called 'dead work' by miners shall not be deducted from the proceeds of the ores in arriving at the net profits. It is further agreed and understood between the parties hereto that if, at the expiration of said eight months, the said parties of the second part shall have made the said two thirteen thousand dollar payments, and the said receiver's receipt for the entry of said mine shall not then have been obtained by the first party, and deposited in said bank, that then, and in that case, the parties of the second part shall be entitled to go on and work said mine in the same manner as before, depositing the net proceeds of such working in said bank until a sufficient sum is there deposited to pay said ten thousand dollars ($ 10,000); and that thereafter the parties of the second part shall be entitled to go on and work said mine in such manner as they shall see fit, and to have to their own use all the proceeds of the ores, as fully and to all intents and purposes as though they had a deed therefor; but the said party of the first part shall not be entitled to draw said sum of ten thousand dollars ($ 10,000) from said bank until it shall have procured and deposited therein the said final receiver's receipt for the entry of said mine. The parties of the second part further agree that, in working said mine, they will do so in an economical and miner-like manner, and that all tunnels, drifts, shafts and stopes therein shall be promptly timbered wherever necessary to preserve the work therein. It is further agreed between the parties hereto that, if the parties of the second part shall fail to make any of said payments within the time herein mentioned, then this agreement shall, at the option of the party of the first part be forfeited, and all payments previously made shall also be forfeited to the party of the first part; and the parties of the second part agree that, upon such forfeiture, they will quit and deliver up to the party of the first part the possession of said mine. In witness whereof, the party of the first part has caused its corporate name to be hereunto subscribed by its president, and its seal to be hereunto affixed by its secretary, and the parties of the second part have hereunto subscribed their names, the day and year first above written. In triplicate.

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