True v. Hi-Plains Elevator Machinery, Inc., HI-PLAINS

• Decision Date: 10 April 1978
• Docket Number: HI-PLAINS,No. 4725,4725
• Citation: 577 P.2d 991
• Parties: H. A. TRUE, Jr., Appellant (Plaintiff below), v.ELEVATOR MACHINERY, INC., Appellee (Defendant and Third-Party Plaintiff below), v. KINGMAN ELEVATOR AND MILL SERVICE, INC. (Third-Party Defendant below).
• Court: Wyoming Supreme Court

Page 991

577 P.2d 991

H. A. TRUE, Jr., Appellant (Plaintiff below), v. HI-PLAINS ELEVATOR MACHINERY, INC., Appellee (Defendant and Third-Party Plaintiff below), v. KINGMAN ELEVATOR AND MILL SERVICE, INC. (Third-Party Defendant below).

No. 4725.

Supreme Court of Wyoming.

April 10, 1978.

Rehearing Denied June 2, 1978.

Robert Stanley Lowe, Casper, signed the brief and appeared in oral argument on behalf of the appellant.

Richard S. Dumbrill, Jones & Dumbrill, Newcastle, signed the brief and appeared in oral argument on behalf of the appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

This is an appeal by plaintiff-appellant, H. A. True, Jr. (hereinafter True), from a judgment against him in favor of defendant-appellee, Hi-Plains Elevator Machinery, Inc. (hereinafter Hi-Plains), on its counterclaim seeking to establish and foreclose a mechanic's lien for materials and supplies alleged to have been furnished by defendant for repairs and improvements to a feed mill owned by plaintiff. The materials and supplies were alleged to have been furnished to third-party defendant, Kingman Elevator and Mill Service, Inc. (hereinafter Kingman), contractor. True and Hi-Plains were also granted personal judgments against Kingman on their respective third-party complaints. Kingman has not appealed from either of the judgments and is not a party in this appeal. The case was tried by the trial court without a jury.

The issues are: (1) Whether the findings of fact set forth in the judgment were proper; (2) Whether the trial court erred in finding that Hi-Plains and Kingman were neither engaged in a joint adventure nor an agency relationship; (3) Whether Hi-Plains, a foreign corporation, is barred from maintaining an action by counterclaim in the courts of Wyoming against one of its citizens on a claim arising out of contract performed in this state; (4) Whether the trial court erred in striking True's jury trial demand; and (5) Whether the judgment form was erroneous. We affirm but remand the case with directions to modify the judgment against True in accordance with § 29-22, W.S.1957, C.1965, in conformity with the holdings we shall express.

Hi-Plains is a Kansas corporation with its principal place of business in Salina, Kansas. Kingman is also a Kansas corporation, with its principal office in Kingman, Kansas. True is the owner and operator of the LAK Ranch in Weston County, Wyoming, the situs of the feed mill, including a one-acre tract ¹ of land upon which it is situated that was subjected to foreclosure by the judgment of the district court.

The action was commenced on July 31, 1975, when True filed a complaint against Hi-Plains seeking $100,000.00 damages for impairment of True's title to the mill and disputed tract, a restraining order against Hi-Plains, foreclosing a purported mechanic's lien thereon and an order quieting title. The action was instituted as a result of an "Affidavit and Notice of Claim of Materialman's Lien" filed by Hi-Plains. The slander of title claim was later dropped by amended complaint. Hi-Plains then filed its answer as well as a counterclaim, wherein it sought to establish and foreclose a mechanic's lien to secure payment for materials supplied for improvements to the feed mill. Hi-Plains also filed a third-party complaint against Kingman for the value of materials furnished to Kingman for use in the latter's contract with True to construct repairs and improvements to the feed mill.

True filed a reply to the counterclaim of Hi-Plains, and a third-party complaint against Kingman requesting joinder of the latter as an additional party to the action and demanding judgment against Kingman for any sums that Hi-Plains might recover from True and for costs of defending the counterclaim. Prior to trial, True moved to dismiss his complaint and amended complaint which was granted by order of court. He subsequently filed a motion for entry of summary judgment on the counterclaim, which was denied. On April 19, 1976, the case went to trial on the counterclaim of Hi-Plains against True, Hi-Plains' third-party action against Kingman and True's third-party claim against Kingman. The facts which we shall now narrate were developed by the evidence.

In 1972, Hi-Plains contracted with True to build an elevator and expand the feeding facilities of the latter's farm situate in the area of Wheatland, Wyoming. As that Wheatland project was nearing completion, True's representative, William Shepard, telephoned Wilbur Leuhring, president of Hi-Plains, in the early part of 1973 and arranged for Leuhring to travel to Wyoming to look over a feed mill at the LAK Ranch near Newcastle in Weston County. After Leuhring made his inspection of the premises on March 7, 1973, he submitted a bid to complete the proposed changes and improvements to the feed mill.

True did not respond to the bid until Shepard called Leuhring sometime in the spring or summer of 1973 to inquire whether Hi-Plains could start the project. Leuhring informed Shepard that Hi-Plains had sold its construction business, and its successor was unable to perform the work contemplated by the bid. In response to Shepard's inquiry, Leuhring suggested Kingman as a company that might be interested in bidding on the project. In the early part of August, 1973, Leuhring chartered an airplane and flew with B. C. Winkle, President and manager of Kingman, from Kansas to the LAK Ranch in Wyoming, where both inspected the feed mill for the purpose of developing cost quotations on the project. On the return flight to Kansas, Winkle indicated that Kingman would submit a bid on the LAK Ranch project. Leuhring and Winkle subsequently collaborated in developing a list of equipment needed by Kingman for the job, the prices of which were to be quoted by Hi-Plains. Hi-Plains submitted the quotation to Kingman on August 16, 1973.

It was debatable whether True would give his approval to the LAK project, so a substantial time period elapsed before negotiations with Kingman were continued. On May 6, 1974, Kingman prepared and submitted a proposal to True which was subsequently accepted. Hi-Plains, in the meantime, was requested by Kingman to recalculate and update the quotation for materials to be used in the project. Hi-Plains complied by sending a quotation directly to Kingman. The written contract between Kingman and True provided that the LAK project would be performed by Kingman for a consideration of $29,379.73, labor, materials, freight and sales tax included. The contract also provided that additional work would be performed at the rate of $13.50 per-man-hour, plus $12.50 daily expenses for each man employed.

On August 16, 1974, Hi-Plains sent an invoice to Kingman for materials and supplies to be used in connection with the LAK project, and Kingman commenced work under the terms of the contract the day after Labor Day in September, 1974. The construction contract was completed as of November 6, 1974. True made final payment to Kingman on the contract on December 27, 1974.

While the original LAK project was in progress, True and Kingman entered into another written agreement on October 24, 1974, for the installation of a vibrating screen for the mill. While awaiting its arrival, some additional work was performed by Kingman's workmen, consisting of additional repairs, alterations and modifications to the feed mill. This work was performed pursuant to oral agreement, but billed by Kingman under the extra-work provision of the May 6, 1974, contract. Hi-Plains shipped additional materials and parts for the extra work up to January 10, 1975.

When the screen finally arrived, Kingman's workmen dropped it during installation. Kingman went out of business before a new vibrating screen arrived. It was eventually installed by another contractor. True paid off Kingman's billings for the additional work on February 4, 1975.

Prior to the final payment on the May 6, 1974, contract, Leuhring called Shepard at the end of November or the first part of December, 1974, and advised him that Hi-Plains had not been paid for the materials that it had shipped Kingman for the LAK project. Leuhring requested Shepard to "make out a two-party check, or make sure that we had been paid before he paid the balance due to (Kingman)." Shepard responded that it was against True's policy to put two names on a check. After this call, an affidavit was eventually obtained from Winkle, as president of Kingman, which purported to show that any amount due for labor and materials used in the LAK project and which might constitute lienable items against the property of True had either been paid or would be fully satisfied when the final installment was paid by True on the contract. The final payment on the contract was subsequently made to Kingman, but Hi-Plains was never paid on the invoices which applied to the LAK job. Any payment that Kingman made to Hi-Plains was credited only to specific invoices Kingman directed be paid. The total owing to Hi-Plains for materials and supplies furnished to Kingman on his agreement with True was $7,408.01.

On March 15, 1975, Hi-Plains, not having received any payment, notified True and Kingman, as required by § 29-12, W.S.1957, C.1967, of its intent to file a materialman's lien on True's property in Weston County, Wyoming. An "Affidavit and Notice of Claim of Materialman's Lien" was filed in the county clerk's office in Weston County on April 3, 1975. True brought his cause of action before Hi-Plains could file suit to establish and foreclose the mechanic's lien.

On June 4, 1976, the trial court entered judgment in favor of Hi-Plains, against True, declaring a first and valid lien in the amount of $7,895.05 (including interest and costs) on True's feed mill and the land upon which it is situated to the extent of one acre. The judgment further ordered execution upon the property in satisfaction of the lien. In addition,...