The Badger Lumber and Coal Co. v. Wilson

Decision Date11 December 1926
Docket Number26,773,26,772
Citation122 Kan. 48,251 P. 196
CourtKansas Supreme Court
PartiesTHE BADGER LUMBER AND COAL CO., Appellant, v. C. H. SCHMIDT and CLARENCE SCHMIDT, Copartners, doing business as C. H. SCHMIDT & SON, HOMER W. WILSON et al., Appellees. THE BADGER LUMBER AND COAL CO., Appellant, v. C. H. SCHMIDT and CLARENCE SCHMIDT, Partners, doing business as C. H. SCHMIDT & SON, J. E. JOHNTZ and DAISY JOHNTZ, his wife, Appellees

Decided July, 1926.

Appeals from Dickinson district court; CASSIUS M. CLARK judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MECHANICS' LIENS--Lien Statement--Necessity of Designating Contractor. A lien statement filed by a subcontractor to subject the property of an owner to liability for materials furnished to the principal contractor and used by the latter to improve the owner's property is fatally defective if it fails to state the name of the contractor as the statute prescribes--following Lumber Co. v. Washington, 80 Kan. 613, 103 P. 80.

2. SAME--Lien Statement--Amendment--Discretion of Court. Where a lien statement is properly amendable, the granting of permission to amend is ordinarily within the sound discretion of the trial court; and where a motion to amend was not filed until some fourteen months after the filing of the lien statement nor until after the action to foreclose the lien was begun, tried, and decided, the overruling of such belated motion does not disclose abuse of the trial court's discretion.

3. SAME--Property Subject to Lien -- Nature of Improvement. Rule followed that an owner's real property is not to be subjected to a lien for materials which do not enter into the construction of some improvement which becomes part of the realty--following Sash & Sales Co. v. Early et al., 117 Kan. 425, 232 P. 232.

4. SAME--Lien Statement--Insufficiency Not Aided by Petition. A failure to conform to a statutory requisite in the recitals of a lien statement, such as designating the contractor to whom the materials were furnished and by whom they were used in the improvement of the property sought to be subjected to a subcontractor's lien, is not aided by the allegations of the subcontractor's petition in an action to enforce the lien, as the lien statement filed for record must be legally sufficient in itself, in order to authorize its enforcement.

Matt Guilfoyle, of Abilene, for the appellant.

S. S. Smith, of Abilene, for the appellees.

OPINION

DAWSON, J.:

In these two appeals the validity of subcontractors' liens was drawn in question.

In case No. 26,772, it appears that plaintiff sought to enforce a lien for lumber and materials supplied for the erection of a house in Abilene for Homer Wilson and wife, the appellees. The last admitted item of materials so furnished was delivered on December 24, 1923, and plaintiff's verified lien statement as a subcontractor was not filed with the clerk of the district court until February 27, 1924. This statement did not set forth the name of the contractor unless it might be implied from the allegation that--

"C. H. Schmidt and Clarence Schmidt did purchase . . . certain building material, according to schedule hereby annexed, . . . and said material was actually used in the . . . erection of said buildings [on Wilson's property described]. . . . That there is due and owing the said The Badger Lumber and Coal Co., from the said C. H. Schmidt and Clarence Schmidt for said materials the sum of $ 4,321.44, with interest."

Issues were joined between plaintiff and Wilson and wife, and at the trial it was announced that Schmidt & Schmidt had been adjudged bankrupts since the action was begun. The cause was tried before a referee, who made findings of fact and conclusions of law, all favorable to Wilson and wife, and judgment was entered accordingly.

Plaintiff appeals, urging the sufficiency of the recitals in the lien statement to show that Schmidt & Schmidt were the contractors, that plaintiff should have been permitted to make a belated amendment to its lien statement, and that certain lumber supplied by plaintiff to build a cupboard on January 3, 1924, should be considered as a lienable item so as to carry the account down to a time within 60 days of the filing of the lien statement.

Touching these points in order, we are virtually urged to disregard and overrule the case of Lumber Co. v. Washington, 80 Kan. 613, 103 P. 80, where it was said:

"The requirement of the mechanic's lien statute that the statement filed by one claiming a subcontractor's lien must, among other matters, state the name of the contractor is not met by a recital that the material was sold to a designated person and by him used in constructing a building upon land belonging to another, although the person so designated was in fact the contractor. Such lien statement is fatally defective unless it shows by express averment or by reasonable implication that the purchaser of the material made the improvement under contract with the owner." (Syl.)

Our earlier case of Sash Co. v. Heiman, 71 Kan. 43, 80 P. 16, was to the same effect. The rule declared in these cases has substantial support in 40 C. J. 234, 235, and 18 R. C. L. 926, 927, 937, although a more liberal attitude toward defective recitals in lien statements is shown in certain textbooks covering this particular subject. See Bloom's Law of Mechanics' Liens and Building Contracts, §§ 371, 372, and Supplement of 1911 thereto; Rockel on Mechanics' Liens, §§ 111, 112. Our code provides that lien statements "may be amended by leave of court in furtherance of justice as pleadings may be in any matter, except as to the amount claimed" (Civ. Code, § 653; R. S. 60-1405); and this court has recognized and applied this rule where it seemed practical and proper to do so. (Lumber Co. v. Collinson, 97 Kan. 791, 156 P. 724; Lumber Co. v. Blanch, 107 Kan. 459, 192 P. 742.) In the Collinson case we said:

"Excessive strictness of construction is not required or permitted either by statute or by decision in this state. (Gen. Stat. 1909, § 9850; Presbyterian Church v. Santy, 52 Kan. 462, 34 P. 974; Wall Paper Co. v. Perkins, 90 Kan. 725, 136 P. 324.) . . . This was fully recognized in Atkinson v. Woodmansee, 68 Kan. 71, 74 P. 640. (See, also, De Klyn v. Gould, 165 N.Y. 282, 59 N.E. 95, 80 Am. St. Rep. 719; Phillips on Mechanics' Liens, § 342; Bloom, Law on Mechanics' Liens, § 848.)" (p. 792.)

However, the rule announced in Lumber Co. v. Washington, supra, is so thoroughly embedded in our local jurisprudence, and is one so easy to conform to by those who seek to compel one man to pay another man's debt, that this court would not be justified in overruling it. In general accord with its tenor and spirit are our recent cases, (Baker v. Griffin, 120 Kan. 448, 243 P. 1057; Spalding Lumber Co. v. Slusher, 121 Kan. 155, 246 P. 999; Cobb v. Burford, 121 Kan. 199, 246 P. 1009.)

The conclusion just reached reduces to little present importance the question whether the trial court should have permitted the lien statement to be amended to show "that C. H. Schmidt and Clarence Schmidt, named therein, were contractors and had a contract with the owner named therein, to build the dwelling house mentioned in said lien." The motion to permit such amendment was filed on April 22, 1925, some fourteen months after the filing of the defective lien statement, and long after Schmidt & Schmidt had been adjudged bankrupts. Granting that if timely application had been made the amendment should have been allowed, there certainly was no abuse of discretion in denying a motion to amend a lien statement fourteen months after it was filed and more than six months after the issues had been joined in an action to foreclose the lien. (Bank v. Badders, 96 Kan. 533, 152 P. 651, syl. P 3, 152 P. 651, and citations; Supply Co. v. Oil Co., 110 Kan. 468, 204 P. 692.) In Rockel on Mechanics' Liens it is said:

"§ 123. As a general rule a claim or statement cannot be amended after the time limit for filing the same had expired, and the amendment should not be allowed where it will materially interfere with intervening rights. If no one is prejudiced by the proposed amendment, it will generally be allowed under equitable principles. Indeed, some statutes particularly authorize the amendment of statements in cases where justice may be subserved thereby, and such...

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  • Tradesmen Intern., Inc. v. Wal-Mart
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    ...mechanic's lien statement filed by a subcontractor which fails to state the name of the contractor is fatally defective. Badger Lumber & Coal Co. v. Schmidt, 122 Kan. 48, Syl. ¶ 1, 251 Pac. 196 (1926). D.J. Fair Lumber Co. concluded that K.S.A. 60-1105(b) does not permit "amendment of a vit......
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    ...mechanic's lien statement filed by a subcontractor which fails to state the name of the contractor is fatally defective. Badger Lumber & Coal Co. v. Schmidt, 122 Kan. 48, Syl. ¶ 1, 251 P. 196 (1926). D.J. Fair Lumber Co. [v. Karlin, 199 Kan. 366, 430 P.2d 222 (1967),] concluded that K.S.A. ......
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    ...mechanic's lien statement filed by a subcontractor which fails to state the name of the contractor is fatally defective. Badger Lumber & Coal Co. v. Schmidt, 122 Kan. 48, Syl. ¶ 1, 251 Pac. 196 (1926)." Tradesmen, 35 Kan.App.2d at 157, 129 P.3d Here, Alliance's lien statement listed Grooms ......
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