The Chicago Lumber and Coal Company v. Smith

• Citation: 114 P. 372,84 Kan. 190
• Decision Date: 11 March 1911
• Docket Number: 16,728
• Parties: THE CHICAGO LUMBER AND COAL COMPANY, Appellee, v. J. E. SMITH, Appellant
• Court: Kansas Supreme Court

114 P. 372

84 Kan. 190

THE CHICAGO LUMBER AND COAL COMPANY, Appellee, v. J. E. SMITH, Appellant

No. 16,728

Supreme Court of Kansas

March 11, 1911

Decided January, 1911.

Appeal from Gove district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, SUPREME COURT--Assignments of Error. An assignment of error that the court erred in the judgment which it rendered merely says the judgment is wrong, and does not specify any error within the meaning of rule 9 of this court.

2. MECHANIC'S LIEN -- Subcontractor -- Notice -- Description of Property. The statute providing that any person who under a subcontract with the contractor furnishes material for an improvement on real estate may obtain a mechanic's lien (Civ. Code, § 651) does not require that the subcontractor should know the exact description of the property to be improved. It is sufficient if his contract relate to the betterment of a particular estate or the estate of a particular person.

3. MECHANIC'S LIEN -- Same. A contractor went to the office of a lumber company and stated to the company's agent that he had "Jesse Smith's contract" and wanted material. The two went out into the company's yard and looked over its stock, and thereafter the company furnished the contractor material as needed which was used in the improvement of Smith's lots. Held, the destination of the material was sufficiently indicated to entitle the company to a lien.

4. MECHANIC'S LIEN--Subcontractor--Notice--Number or Kinds of Structures. In the case stated it was not necessary that the subcontractor should know either the number or the kinds of structures contemplated in order that his contract might furnish the basis for a lien.

5. MECHANIC'S LIEN -- Single Lien--Different Forms of Improvements. A subcontractor furnishing material under a single and entire contract with the contractor is entitled to a single lien for all the material furnished, irrespective of the number of forms the improvement takes or the number of contiguous lots into which the improved tract is divided.

6. MECHANIC'S LIEN -- Same. In the case stated in paragraph 3 the contractor's original contract with the owner provided for the erection of a house only. Afterward a contract was made for the construction of walks around the house and a sidewalk in front of the lots on which the house was situated. Held, the subcontractor had the right to continue to furnish material under his own single and entire contract until the contractor's requirements were satisfied and then file a single lien for the whole account.

A. Gilkeson, for the appellant.

Park B. Pulsifer, and Charles L. Hunt, for the appellee.

OPINION

BURCH, J.:

The Chicago Lumber and Coal Company furnished material to Colby, a contractor with J. E. Smith, which was used in the improvement of lots one, two, three and four, block eleven, in Grainfield, owned by Smith. The improvements consisted of a house, cement walks around the house, and a sidewalk in front of the lots. The lumber company filed a subcontractor's lien to secure payment of a balance due upon the purchase price of the material it furnished. In an action brought for the purpose the lien was foreclosed, and Smith appeals.

Two assignments of error are made: That the court erred in overruling a demurrer to the petition, and that the court erred "in rendering the judgment it rendered."

More than a year elapsed between the ruling on the demurrer and the taking of the appeal. (Bank v. Harding, 65 Kan. 655, 70 P. 655.) The abstract recites that a motion for a new trial was filed, but the grounds are not stated, and the denial of the motion is not assigned as error. (Gas Co. v. Dooley, 73 Kan. 758, 84 P. 719.) The assignment that the court erred in rendering the judgment which it rendered merely says the judgment is wrong, and does not specify any error. (Rule 9 of this court; Brown v. Rhodes, 1 Kan. [Dass. ed.] a 339; Green v. Dunn, 5 Kan. 254, 262; Gamble v. Hodges, 17 Kan. 24.) Consequently there is nothing for the court to consider. However, a few matters discussed in the appellant's brief will be noticed.

It is said there is no evidence to sustain any lien. Colby went to the office of the lumber company and there had a conversation with the company's agent, the. effect of which appears from the following testimony:

"Ques. Do you remember the occasion of J. E. Smith building a house on some lots in Grainfield? Ans. I do.

"Q. Did you have any arrangement with Mr. Colby on behalf of your company for the furnishing of materials to construct that building? A. Well, he just merely came and got it about as he wanted it. There was no special arrangement.

"Q. What was the first talk you had with Mr. Colby with reference to furnishing materials for the building? A. He came to the office and said he had a contract to build this Smith house. He wanted material; we went out into the yard and looked over the stuff, and that was about all there was to it. He came and got it as he wanted it.

"Q. Mr. Reynolds, when Mr. Colby arranged to purchase this stuff from you, was the talk limited to a house, or did it include both a house and a sidewalk? A. He didn't say how much stuff he was going to get; there was no limit to it. The sidewalk was not mentioned.

"Q. What did he say he was going to build? A. I don't know that he told me. He said he had Jesse Smith's contract."

The material furnished under these circumstances was used in the manner stated above. Smith was erecting no other building in Grainfield, and Colby had no other contract, at that time. This evidence was ample to sustain a lien.

"Where materials are furnished and placed in a building, if there be nothing showing a different intention, a jury would be warranted in finding that they were furnished to be used in such building. So if it appear that materials furnished were used in the erection of the building on which a lien is claimed, unless it is shown that they were intended for another purpose, it will be presumed that they had been contracted for to be used in the building." ( Deatherage v. Henderson, 43 Kan. 684, 688, 23 P. 1052.)

It was not essential that Colby should describe or that the lumber company's agent should know on what lots the structure was to be erected.

"It is not essential, however, that there should be a contract specifically describing the lots or building, nor that Howell Brothers should have known the exact location of the same." (Wilson v. Howell, 48 Kan. 150, 152, 29 P. 151.)

Nor was it essential that the lumber company's agent should know the precise character of the contemplated improvement. It was enough for him to know of the original contract and to know the material was to go to the betterment of...