Stidger v. McPhee

• Citation: 62 P. 332,15 Colo.App. 252
• Parties: STIDGER v. McPHEE et al.
• Decision Date: 08 October 1900
• Court: Court of Appeals of Colorado

62 P. 332

15 Colo.App. 252

STIDGER v. McPHEE et al.

Court of Appeals of Colorado

October 8, 1900

Appeal from district court, Arapahoe county.

Action by Charles D. McPhee and another against Eliza C. Stidger to enforce a mechanic's lien. From a judgment in favor of the plaintiffs, the defendant appeals. Reversed.

George Stidger and Geo. S. Redd, for appellant.

Hartzell & Steele, for appellees.

BISSELL P.

McPhee & McGinnity filed a mechanic's lien on some property in North Denver belonging to the appellant. On this appeal we are totally unconcerned about any other questions than one of fact and one of law. The action was begun in 1896, and resulted in a judgment foreclosing the lien. The whole case turned on the date the work was completed by the contractor, Hodgson, who built the house on a contract with Mrs. Stidger. He bought some materials of McPhee & McGinnity, and failed to pay about $378 of the amount of the purchase. The lien was filed to enforce this claim. The house was substantially completed in June, and on the 16th, according to the testimony produced by the appellant, the family moved in. It might be said the house was entirely finished. The only matter which would render this at all untrue or inaccurate grew out of a dispute between the contractor and the owner over the terms of the contract. After Mrs. Stidger moved in, she insisted the screen on the front door should have been made of oak in place of pine, and that a door on a closet or pantry should have been paneled and not battened. The contractor, either conceding that such was the specification, or being willing to yield the point to satisfy the owner, agreed to make the change. The only dispute was about the time when that was done, and whether the alterations were of such a character as to permit a lien to be filed within the statutory time thereafter, or whether the imperfections were trivial and insufficient to support one. The parties differed widely about this date. The question was pivotal. Its determination would either invalidate the lien or permit its enforcement. The whole testimony was directed to this one proposition. The court found that the alterations were not trivial, but were material alterations, providing it was filed in apt time. The judge then found as a matter of fact that the last work was done on the 7th of July. He gave judgment accordingly.

Without attempting to cite the cases or to discuss the proposition we concede the court was doubtless right in holding the alterations material, and that the appellant might not insist that they were not required by the contract. As a general proposition, such matters are matters of fact, and when found by the trial court are conclusive. We are quite in harmony with the authorities which hold that where the owner insists that the changes are required by the terms of the agreement, and they are made, the resulting alterations are not usually, or even often, regarded as immaterial, and the owner cannot insist that they were not done under the contract, and were not necessary parts of it. This, however, still leaves open the question whether the court was right in finding as a matter of fact that the last work was done on the 7th of July. We do not intend to express any disagreement with the finding, leaving it to be determined on the subsequent trial. It may possibly appear that we reverse the case on a narrow ground, but we feel quite at liberty to resort even to a technical proposition because there was almost a failure to establish the time when the work was done, and that the last of it was done 30 days before the lien was filed. The evidence is wholly unsatisfactory, and in no measure reaches the standard required of the plaintiff, who assumes the burden of proving his case. As suggested, the parties are hopelessly in conflict; but we cannot see, outside of the evidence, which is inadmissible unless supported as we suggest, that the plaintiff bore his burden. We should not, however, on this basis, reverse the case had the trial court not committed what we conceive to be a grave error in admitting testimony whereon, as we see from his opinion, he virtually based his decision. In order to determine the time when the last work was done, the parties gave a good deal of evidence about the delivery and laying of carpets in the house. The appellant and her witnesses attempted to establish this time, and therefrom draw the inference or conclusion that the changes were not made on the 7th, as testified by the contractor, but long prior to that date. We concede that the time of the delivery of the carpets was quite a pivotal inquiry. In order to sustain the contractor's evidence that the last work was done on the 7th, the lienors undertook to show, by Joslin & Co. or their employés, the time when the carpets were delivered. In order to prove this fact, they produced one Miles, who was the foreman of the carpet department. Substantially he testified that he was the foreman of the department, and that it was the custom of Joslin & Co. never to make an entry on the books until after or at the times the goods were delivered. As he testified, the salesman brought him a slip showing the sale of the carpets, the time of the delivery, and therefrom he made an entry on the books, and that the entry, the slip, and the delivery were substantially concurrent acts. Thereupon he was asked to produce the daybook whereon the entry...