The Southwestern Paint and Wall Paper Company v. Maurice

• Citation: 90 Kan. 725,136 P. 324
• Decision Date: 08 November 1913
• Docket Number: 18,308
• Parties: THE SOUTHWESTERN PAINT AND WALL PAPER COMPANY, Appellee, v. MAURICE V. PERKINS, as Administrator, etc., et al., Appellants, and W. J. POWELL et al., Appellees
• Court: United States State Supreme Court of Kansas

136 P. 324

90 Kan. 725

THE SOUTHWESTERN PAINT AND WALL PAPER COMPANY, Appellee, v. MAURICE V. PERKINS, as Administrator, etc., et al., Appellants, and W. J. POWELL et al., Appellees

No. 18,308

Supreme Court of Kansas

November 8, 1913

Decided July, 1913

Appeal from Montgomery district court; THOMAS J. FLANNELLY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. MECHANIC'S LIEN -- Adjacent Buildings -- Confusion of Accounts--Lien Statements Sufficiently Itemized. The owners of adjacent lots erected buildings on them. The owners employed the same contractor, who worked on both buildings at the same time. He purchased material for both buildings of a subcontractor who charged it all to one account. The buildings were erected according to the same plan, and the various kinds of material used in both were of the same grade. After all the material had been furnished it was apportioned between the two buildings according to a rule which is not in dispute. One of the owners paid his proportion in full and the subcontractor filed a mechanic's lien against the building of the other. In the lien statement all the items furnished for both buildings were specified, all credits for payment on both buildings were specified, and a lien was claimed for the balance. Another subcontractor who had furnished material and kept his account in the same way separated the items which went into the building against which the lien was filed from the others and specified them in its lien statement. Held, the original confusion of accounts was not prejudicial, and that the lien statements were sufficiently itemized.

2. NOTICE OF LIEN--Registered Mail--Valid. Written notice of the filing of a mechanic's lien served by registered mail which reaches the owner personally is valid.

3. PRICE OF BUILDING FIXED BY OWNER AND CONTRACTOR AFTER COMPLETION--Not Binding on Subcontractor. It appeared that the contract price of the building was fixed by the owner and the contractor in a settlement made after the building was completed. Held, that the liability for subcontractors' liens was not limited to such price.

4. AMENDMENTS TO PETITION--To Conform to Proof--Not Error. It appeared on the trial that the contractor was really the agent of the owner in purchasing material and employing labor for the erection of the building. Held, that amendments to the petition to conform to the proof and a personal judgment against the owner were proper.

Luther Perkins, of Coffeyville, and S. H. Piper, of Independence for the appellants.

Charles D. Welch, and Dallas W. Knapp, both of Coffeyville, for the appellees.

OPINION

BURCH, J.:

The action in the district court was one to foreclose mechanic's liens for labor and material furnished to improve the property of Charles Riley. Riley died pending the proceeding and the action was revived against his administrator, Maurice V. Perkins, and against his sole heir, Robert Riley. Liens were established in favor of the Southwestern Paint and Wall Paper Company, the McCoy Lumber Company, and F. F. Clough, subcontractors under W. G. Powell, the contractor who erected the improvements. The administrator and heir appeal.

Riley and J. H. Roberts owned adjacent lots. Each one erected a building on his own lot, the two structures, however, having a common wall. Powell acted as the contractor of both owners and worked on both buildings at the same time. He purchased material for both buildings from the paint company and from the lumber company. Each one charged the material it furnished to an account on its books designated as "Roberts & Riley Job." After the last material ordered from the paint company had been furnished, it made a complete and accurate segregation of the items used in the Riley building. The account thus prepared was approved by Powell and by the foreman of the work. Powell gave an order on Riley for its payment and a copy of it was attached to the lien statement. The lumber company, with the assistance of Powell and Roberts, made an apportionment of the material it had furnished to each building. The floor space of the buildings was adopted as a basis for the apportionment, the two having been constructed according to the same plan and the material furnished having all been of the same grade. Roberts paid for his proportion. Riley had made some payments on account and Powell gave the lumber company an order on Riley for the balance. In its lien statement the lumber company set out all the items charged to the Roberts and Riley job, together with all credits, showing by whom paid, and claimed a lien for the balance.

It is argued that the paint company and the lumber company are not entitled to liens because of a confusion of accounts and because the lien statements were indefinite.

It may be premised that the mechanic's-lien law of this state is not, like similar laws in some other states, construed strictly because in supposed derogation of the common law. The law is framed on broad principles of justice and equity which would call for a liberal interpretation in the absence of a statutory rule governing the matter. (Deatherage v. Henderson, 43 Kan. 684, 690, 23 P. 1052; Lumber Co. v. McCurley, 84 Kan. 751, 115 P. 590; Lumber Co. v. Douglas, 89 Kan. 308, 316, 131 P. 563.) But besides this, the legislature has prescribed a rule which reads as follows:

"The rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state, but all such statutes shall be liberally construed to promote their object." (Gen. Stat. 1909, § 9850.)

A confusion of accounts destroys the basis of a lien only when confusion actually results. The items furnished by the paint company for the Riley building were separable and were in fact separated from those furnished for the Roberts building and were specified in the lien statement. While the items furnished by the lumber company to the Riley building could not be segregated from those which...