Valley Lumber & Mfg. Co. v. Driessel

• Decision Date: 22 January 1908
• Court: Idaho Supreme Court
• Parties: VALLEY LUMBER & MANUFACTURING CO., Respondent, v. JOHN DRIESSEL, Administrator, et al., Appellants

93 P. 765

13 Idaho 662

VALLEY LUMBER & MANUFACTURING CO., Respondent, v. JOHN DRIESSEL, Administrator, et al., Appellants

Supreme Court of Idaho

January 22, 1908

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Petition denied.

AILSHIE, C. J. Sullivan, J., concurs.

OPINION

AILSHIE, C. J.

Appellants have filed a petition for rehearing, and insist that since the court in the original opinion held that there was no evidence in the record to support the finding made by the trial court to the effect that the house and porch were constructed under one and the same contract, the findings are therefore necessarily rendered insufficient to support the judgment. In order for the plaintiff to recover, it was necessary for it to establish that it furnished the material to the contractor under one continuous contract with him, and that the lien was filed within the statutory time after furnishing the material. It is possible for this to be true, and still two or more contracts to have been made and to have existed between the owner of the building and the contractor or builder. Now, in so far as this finding has reference to the contract or contracts between the owner of the premises and the contractor, it is not supported by the evidence, for the reason that the evidence clearly shows that there was one contract for the main building and another and separate contract for the porch. On the other hand, in so far as the finding had reference to the contract between the builder and the company furnishing the material, we hold that the finding is supported by the evidence. In this view of the case the findings are still sufficient to support the judgment.

But the appellants insist that as soon as they succeeded in establishing the fact that the material furnished was used by the contractor upon two separate and distinct contracts which he had with the owner of the building and premises, they then shifted the burden of showing want of knowledge that two separate contracts existed on to the materialman, the respondent in this case. We do not think that would be a correct view to take of the law or the proper practice to adopt. When the plaintiff, who is seeking to foreclose his lien, establishes the fact that he furnished the material to the contractor under one arrangement and contract with him, and has presented sufficient evidence to...