Toy v. Rogers

• Decision Date: 04 February 1946
• Docket Number: 15183.
• Citation: 165 P.2d 1017,114 Colo. 432
• Parties: TOY et al. v. ROGERS et al.
• Court: Colorado Supreme Court

165 P.2d 1017

114 Colo. 432

TOY et al. v. ROGERS et al.

No. 15183.

Supreme Court of Colorado, en Banc.

February 4, 1946

Error to District Court, City and County of Denver; Henry A. Hicks Judge.

Action by E. S. Toy and another, doing business as the Blair Electric Service, and others against Sadie D. Rogers and others, to foreclose mechanics' liens. To review judgment of dismissal, the plaintiffs bring error.

Reversed and remanded.

W. F Robinson, Jr., John E. Gorsuch, and James B. Radetsky, all of Denver, for plaintiffs in error.

Ernest L. Rhoads, of Denver, for defendants in error.

ALTER Justice.

This action was brought to foreclose mechanic's liens. At the conclusion of the plaintiffs' evidence, defendants moved for nonsuits, which motions were granted, and thereafter judgments of dismissal entered, to review which plaintiffs have brought the case here by writ of error.

E. S Toy, A. F. Blair, doing business as the Blair Electric Service, W. B. Barr Lumber Company, a corporation, the Rio Grande Fuel Company, a corporation, and the Barnett Fuel &amp Oil Company, a corporation, were plaintiffs and lien claimants, and Sadie D. Rogers, Paul R. Emrick, and Ruby B. Wilson were defendants. Sadie D. Rogers is the only defendant entering her appearance here.

In this opinion we will refer to the parties as plaintiffs and defendants or by name.

The complaint alleged the corporate existence of those lien claimants which were corporations; that Sadie D. Rogers was the owner of the property upon which the lien was claimed, subject to a lease to defendants Emrick and Wilson; that the lien claimants had entered into a contract with the defendants to make certain installations and repairs or to furnish labor, materials, supplies and fixtures for the purpose of remodeling the building so owned by Rogers; the reasonable and agreed value of the labor, materials, supplies and fixtures, the part payment on account of the contract, and the balance due thereon, for which separate judgments were sought by each lien claimant.

In her answer Rogers admits the corporate existence of certain lien claimants; admits her ownership of the real estate; denies that she entered into any contract for the labor, materials and supplies mentioned; and generally denies all other allegations in the complaint because of lack of knowledge or information upon which to base a belief. For a further answer and defense Rogers alleges that on September 25, 1940, while the owner of the premises, she entered into a written lease and option to purchase with defendants Emrick and Wilson whereby the premises were leased to them for a period of ten years from September 25, 1940, with the privilege extended to purchase upon certain terms and conditions therein set forth. The lease and option was recorded September 27, 1940, in the office of the clerk and recorder of the City and County of Denver. She further alleges that under the terms and provisions of the lease she agreed to provide Emrick and Wilson with $5,000 to be expended by them 'in remodeling and furnishing the top floor' of the building upon the premises; that she agreed to pay all bills for labor and material upon the premises authorized by Emrick and Wilson, not, however, to exceed the sum of $5,000. There is a further allegation that she made the sum of $5,000 available for remodeling and furnishing the top floor and that the same had been fully expended. She specifically denies any contract with any of the lien claimants.

At a pretrial conference the following facts were admitted: 1. Defendant Rogers' ownership of the premises; 2. the execution and recordation of the lease and option prior to any transactions with the lien claimants; 3. the lien statements were legally sufficient, of equal rank, and the sums demanded therein were still due and unpaid.

The only point specified for reversal is: The trial court erred in sustaining the motion of defendants for a nonsuit.

The plaintiffs' evidence discloses that their business arrangement for remodeling and furnishing the premises was made with Emrick, who, it appears, was the husband of Rogers. It also discloses that defendant Rogers was frequently on the premises; saw the work as it progressed; issued orders, and made suggestions with reference thereto. It further discloses her entire failure to comply with any of the provisions of section 19, chapter 101, '35 C.S.A., if she sought to relieve her property from mechanic's liens. Plaintiffs' evidence wholly failed to establish any contract between them and defendant Rogers and no competent evidence was introduced to establish the relationship of principal...