Turner v. John

• Decision Date: 28 December 1898
• Citation: 78 N.W. 340,8 N.D. 245
• Court: North Dakota Supreme Court

78 N.W. 340

8 N.D. 245

ARTHUR F. TURNER v. H. H. ST. JOHN, et al

Supreme Court of North Dakota

December 28, 1898

Appeal from District Court, Grand Forks County; Fisk, J.

Action by Arthur F. Turner against H. H. St. John, The Security Trust Company, Lester F. Thurber, as assignee of the Security Trust Company, The Guaranty Savings Bank of Manchester, New Hampshire, the Grand Forks Investment Company, the J. W Reedy Elevator Manufacturing Company, and others, defendants for the foreclosure of a mechanic's lien upon the "St. John Block" in the City of Grand Forks, N. D Plaintiff had judgment establishing his lien for the sum of $ 7,858.25 and interest from January 3, 1892, as a first lien and directing a sale of the property to satisfy the sum so found due. Plaintiff's claim to the amount of two thousand dollars was disallowed and not included in said judgment. Plaintiff, Arthur F. Turner, appealed from that portion of the judgment disallowing two thousand dollars of his account. The defendants, Lester F. Thurber, assignee of the Security Trust Company, The Guaranty Savings Bank of Manchester, New Hampshire, and the Grand Forks Investment Company, severally perfected appeals from the judgment in favor of plaintiff. The J. W. Reedy Elevator Manufacturing Company appealed from the judgment, declaring its account for lien insufficient and void. Case tried de novo upon the evidence taken below, and judgment ordered for the plaintiff establishing his claim for lien for full amount. The rights and priorities of all parties adjusted.

Judgment reversed, vacated, and set aside; judgment entered of foreclosure and sale, establishing plaintiff's lien as a first lien upon the premises described in the complaint for the sum of $ 9,125.65, with interest.

Templeton & Rex, for appellants, Lester F. Thurber, assignee of the Security Trust Company, The Grand Forks Investment Company, and the Guaranty Savings Bank of Manchester, N. H.

Appellants alleged payment in full. This was sufficient to justify the introduction of evidence showing that plaintiff owed office rent which he had agreed should be applied on the lien debt. Fall v. Johnson, 8 S.D. 163, 65 N.W. 909; Bush v. Sproat, 43 Ark. 416; Farmers' Bank v. Sherman, 33 N.Y. 69. The agreements of Clifford and the Grand Forks Investment Company to protect plaintiff against the notes given for moneys advanced, amounted to collateral security and a waiver of any right to a mechanic's lien. § 5468 Comp. Laws; Harrison v. Council Bluffs, 25 F. 170; S. C. 33 F. 132; Bissel v. Lewis, 56 Ia. 231, 9 N.W. 177; Hale v. Ry. Co. 13 F. 204; Croskey v. Carey, 48 Ill. 442; Kinzey v. Thomas, 28 Ill. 502; E. P. Allis Co. v. Madison, 9 S.D. 459; S. C. 70 N.W. 650. Plaintiff's lien statement was insufficient in that it contained no itemized statement of account. Red River Lumber Co. v. Congregation, etc., 7 N.D. 46, 73 N.W. 203; Rude v. Mitchell, 11 S.W. 225; Valentine v. Ranson, 10 N.W. 338. Plaintiff overstated the amount due him in his lien statement, this vitiates his lien. Gibbs v. Hanchette, 90 Mich. 657, 51 N.W. 691; Stubbs v. Clarinda, 22 N.W. 654; Scheibner v. Cohen, 65 N.W. 760; Hannah & Lay Co. v. Mosser, 105 Mich. 18, 62 N.W. 1120; Nicolai Bros. v. Van Fridagh, 31 P. 288; Lynch v. Cronan, 6 Gray 531; Hoffman v. Walton, 36 Mo. 613; Kling v. Construction Co., 7 Mo.App. 410; Foster v. Schneider, 2 N.Y.S. 875; Reeve v. Elmendorf, 38 N.J.L. 125.

Burke Corbet, for appellant, the J. W. Reedy Elevator Manufacturing Company.

This appellant's lien existed and was in full force without any statement account or claim being filed with the clerk of the District Court. § § 5469, 5476 Comp. Laws; § § 4788, 4791, Rev. Codes; Anderson v. Seamens, 49 Ark. 475, 5 S.W. 799; Berndt v. Armkneckt, 50 Ill.App. 467; Nielson v. Iowa Eastern R. Co., 51 Ia. 184, 1 N.W. 434; Doolittle v. Plenz, 16 Neb. 153, 20 N.W. 116; Hoskens v. Carter, 24 N.W. 249; Curtes v. Broadwell, 24 N.W. 265; Noell v. Temple, 12 Ia. 276; Kidd v. Wilson, 23 Ia. 464; Evans v. Tripp, 35 Ia. 371; Hill v. Building Co., 6 S.D. 160, 60 N.W. 752; Wisconsin Trust Co. v. Robinson & Cary, 68 F. 778; Kohn v. Hager, 30 Ark. 28; Bissell v. Lewis, 9 N.W. 177; Chicago, etc. v. Des Moines, 65 N.W. 1017; Lumber Co. v. Bowman, 42 N.W. 557; Lee v. Hoyt, 70 N.W. 95; Hoppes v. Baie, 75 N.W. 495; Whittier v. Blakely, 11 P. 305. Appellant's lien was good as against all defendants in this case because their rights accrued before the expiration of ninety days from the completion of the building or the elevator and subsequent to the commencement of the building. § 5478 Comp. Laws; § 4793 Rev. Codes; Haxton Steam Heater Co. v. Gordon, 2 N.D. 246, 50 N.W. 708. Under the statute of this state and of Iowa, from which it was taken, a failure to file the lien statement does not defeat the lien except as to purchasers and incumbrancers. Noel v. Temple, 12 Ia. 276; Kidd v. Wilson, 23 Ia. 464; Neilson v. Ry. Co., 51 Ia. 184, 1 N.W. 434; Bissell v. Lewis, 9 N.W. 177; Evans v. Tripp, 35 Ia. 371. As between the parties to the contract the filing of a statement for a lien not being necessary to create a lien. Peatman v. Power Co., 64 N.W. 689; Lee v. Hoyt, 70 N.W. 95; Chicago L. Co. v. Des Moines, 65 N.W. 1017. Therefore the filing of an erroneous statement will not necessarily defeat the right of the contractor to a lien. Ewing v. Stockwell, 75 N.W. 657; Hill v. Building Co., 6 S.D. 160, 60 N.W. 752; Parker v. Randolph, 59 N.W. 722; Wisconsin Trust Co. v. Robinson & Carey, 68 F. 779; Sarles v. Sharlow, 5 Dak. 100, 37 N.W. 748. Appellant's account and claim for lien, while in some respects irregular, is not fatally defective. Howe v. Smith, 6 N.D. 432, 71 N.W. 552; White Lake L. Co. v. Russell, 3 Am. St. Rep. 262, 22 Neb. 126; Laird Norton & Co. v. Hopkins, 6 S.D. 217, 60 N.W. 857; Evans v. Sanford, 65 Minn. 271; Drexel v. Richards, 70 N.W. 23; Cary v. McCarty, 50 P. 745. The want of jurat upon this appellant's lien affidavit, when the claim was in fact sworn to, does not defeat its lien. The jurat may be amended. Jackman v. City, 143 Mass. 380, 9 N.E. 740; Hitchings v. Ellis, 1 Allen 175; Hunter v. La Conte, 6 Cow. 728; People v. Rensselaer, 6 Wend. 543; McKinney v. Wilson, 133 Mass. 131; Bennett v. Paine, 7 Watts, 334; Laswell v. Presbyterian Church, 46 Mo. 279; Pottsvill v. Curry, 32 Pa. 443; Peterson v. Fowler, 43 N.W. 10; Fortenheim v. Clafin, 47 Ark. 49, 14 S.W. 462; Wiley v. Bennett, 9 Baxt. 581; Stout v. Folger, 34 Ia. 71; Kruse v. Wilson, 79 Ill. 233; Bergsch v. Keevil, 19 Mo. 127; Ainslee v. Kohn, 16 Ore. 363, 19 P. 97; Cook v. Jenkins, 30 Ia. 432; Heffernon v. Harvey, 24 S.E. 592; Fidelity Ins. Co. v. Roanoke Iron Co., 81 F. 440; Bickerdike v. Allen, 157 Ill. 95, 41 N.E. 740; Cox v. Stern, 48 N.E. 906; Williams v. Stevenson, 103 Ind. 243, 2 N.E. 728. The omission of a jurat and irregularities therein are cured by a recital in the body of the instrument to the effect, as in this case, that the affiant was sworn. Jackman v. Gloucester, 143 Mass. 380, 9 N.E. 740; Bandy v. Ry. Co., 33 Minn. 380; Pottsville v. Curry, 32 Pa. 442; Fortenheim v. Claflin, 14 S.W. 462; Beckerdike v. Allen, 41 N.E. 740. This appellant upon the trial filed a new and corrected affidavit and account for lien. The lien may be filed after suit brought. Whittier v. Blakely, 13 Ore. 546, 11 P. 305. The provisions of the Revised Codes do not repeal the lien law under which this lien was filed. The provisions of the new are so nearly indentical with those of the old enactments in relation to mechanics' liens as to amount to a continuation thereof. Gull River Lumber Co. v. Lee, 7 N.D. 135, 73 N.W. 430; Steamship Co. v. Joliffe, 2 Wall. 450; Wright v. Oakley, 5 Metc. 406. An unconditional repeal of the former statute without any express reservation of rights existing or accrued thereunder would not justify a construction that such rights expired with the statute. Christman v. Carleville, 36 Mo. 610; Winter v. Dickerson, 42 Ala. 92; Weaver v. Silk, 10 Kan. 619; Warren v. Woodward, 70 N.C. 382; In re Hope Mining Co., 1 Sawyer, 710; Fed. Cases No. 6681 Strembel v. Ry. Co., 12 Wis. 67; Hallahan v. Herbert, 11 Abb. Pr. N. S. 326; Chowning v. Barnett, 30 Ark. 560; Handel v. Elliott, 60 Tex. 145; State v. Moorehouse, 5 N.D. 406, 67 N.W. 140.

Templeton & Rex, for the Guaranty Savings Bank, et al., in reply to brief of the J. W. Reedy Elevator Manufacturing Co.

The decision of the South Dakota Court, Hill v. Alliance Building Co., 6 S.D. 160, 60 N.W. 752, is clearly unsound. The Court wholly overlooked or misconstrued portions of the statute. § § 5469, 5476, 5477, 5478, 5481 and 5484, Comp. Laws. It is essential that the lien claimant make and file his statement in strict compliance with the statute, both as against persons with, and those without notice. Brooks v. Burlington & S. Ry. Co., 101 U.S 443. Campbell v. Jacobson, 145 Ill. 389, 34 N.E. 39; Von Tobel v. Ostander, 42 N.E. 152. The right to the lien bring purely statutory, the statute must be substantially complied with in all respects. Osborn v. Co., 13 So. Rep. 776; McGillivary v. District, 65 N.W. 974; Alfree Mfg. Co. v. Henry, 71 N.W. 370; Lavin v. Bradley, 1 N.D. 291. Both the drawing and filing of the verified account are indispensable. Fraine v. Hotel Co., 5 P. 725; Gates v. Brown, 25 P. 914; Collier v. Batterton, 29 S.W. 490; U. S. Sav. L. & B. Co. v. Jones, 37 P. 666; Greeley, etc. Co. v. Harris, 20 P. 764; Stetson, etc. Co. v. Harris, 32 P. 108. The necessity of a lien statement as against the owner and persons with notice has been recognized by this Court. Howe v. Smith, 6 N.D. 432; Red River Lumber Co. v. Congregation, 7 N.D. 46. In the jurisdictions where it is held that a failure to file the lien is not fatal, it will be found that the statute gives the lien upon the...