Valley Lumber & Mfg. Co. v. Nickerson

• Decision Date: 09 December 1907
• Citation: 13 Idaho 682,93 P. 24
• Court: Idaho Supreme Court
• Parties: VALLEY LUMBER & MANUFACTURING COMPANY, Respondent, v. JOHN E. NICKERSON et al., Appellants

93 P. 24

13 Idaho 682

VALLEY LUMBER & MANUFACTURING COMPANY, Respondent, v. JOHN E. NICKERSON et al., Appellants

Supreme Court of Idaho

December 9, 1907

FOREIGN CORPORATION-PLEADING COMPLIANCE WITH STATE LAW-MATERIALMAN'S LIEN-EXTENSION OF TIME WITHIN WHICH TO FILE LIEN-MATERIAL TO BE USED IN BUILDING-CONTRACTOR AGENT OF OWNER-EVIDENCE-PROOF OF DELIVERY.

1. In order for a foreign corporation to maintain an action in the courts of this state, it is necessary that it plead a compliance with the constitution and statutes prescribing the conditions on which it may qualify and obtain a legal capacity to contract and maintain actions thereon, and a complaint that fails to state such facts is subject to demurrer. If, however, the defendant fails to raise the question by demurrer or answer, he will be deemed to have waived the same.

2. A demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of action is not sufficient to raise the question of the legal capacity of a foreign corporation to maintain an action in this state.

3. Where the materialman had furnished no material for thirty days, and during the last twenty days of that time the building was occupied by the owner, and in the meanwhile the contractor had returned material that was not used in the building, and the materialman had notice of all these facts he cannot extend the time for filing a lien by proof that he thereafter sent to such building, for the contractor, forty cents' worth of material, there being no showing that such material was necessary for or used in the building under the original contract.

4. A memorandum kept by a yardman in the employ of a lumber company giving a description of lumber, the name of the owner of the building to which it was sent, and the name of the teamster to whom the lumber was delivered, is not competent evidence to prove a delivery of the material to the contractor or at the building for which it was furnished where the teamster was in the employ of the lumber company and not the agent of or in the employ of the contractor.

5. Under the mechanic's lien law of this state (Act of Feb 7, 1899, Sess. Laws, 1899, p. 147), the contractor for the construction, alteration or repair of a building is the special agent of the owner for the purpose of securing the material necessary for the construction, alteration or repair of such building, but through such agency the owner cannot be personally bound, as the charge becomes one purely in rem and runs against the building or structure only.

6. The contractor being only a special agent of the owner, with limited power, his authority to bind the property benefited for the payment of the value of the material extends only to such material as is reasonably and ordinarily sufficient properly to construct or repair the building in accordance with the plans and specifications thereof, or in pursuance of the agreement and contract entered into between the owner and the builder.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action by the plaintiff to foreclose a materialman's lien. Judgment for the plaintiff and defendants appealed. Judgment reversed.

Judgment reversed and a new trial granted. Costs awarded in favor of appellants.

Eugene A. Cox, for Appellants.

Our statute provides that no contract or agreement in the name of or for the use or benefit of a corporation which has not complied with the laws of Idaho "can be sued upon or enforced in any court of this state" prior to the making of such filings. (Katz v. Herrick, 12 Idaho 1, 86 P. 873.)

That being a condition precedent, the fact must be both alleged and proved to entitle the corporation to judgment. (Taber v. Interstate B. & L. Assn., 91 Tex. 92, 40 S.W. 954; citing Cumberland Land Co. v. Canter L. Co. (Tenn. Ch.), 35 S.W. 886; Mullens v. Mtg. Co., 88 Ala. 280, 7 So. 201; Thorne v. Ins. Co., 80 Pa. 15, 21 Am. Rep. 89; Paul v. Virginia, 8 Wall. 168, 19 L.Ed. 357; Holloway v. Railway Co., 23 Tex. 465, 76 Am. Dec. 68.)

Even if the point was not made in the court below, nor does it appear in the evidence, that the complainant had failed to file its charter and have an abstract thereof registered, as required by our statutes, but it does appear that it is a foreign corporation and that it was doing business in this state, then in order to obtain any relief in any of the courts of this state, it was incumbent on the complainant to show affirmatively that it had complied with our statutes. (Cary-Lombard Lumber Co. v. Thomas, 92 Tenn. 587, 22 S.W. 743; Cumberland L. Co. v. Canter L. Co. (Tenn. Ch.), 35 S.W. 886. See, also, for a New York decision in 1905, Welsbach Co. v. Norwich Gas Co., 180 N.Y. 533, 72 N.E. 1152.)

There is no evidence of the filing of a designation of agent with the clerk of the court, and there is no evidence whatsoever of any attempt to file articles and designation of agent with the secretary of state.

Plaintiff, in its lien and complaint, claims delivery of material from February 27, to May 31, 1905. The lien was filed on July 28, 1905, or fifty-eight days from the 31st day of May. The only deliveries attempted to be shown in May are one small item on May 1st, and a forty-cent item on May 31st. The plaintiff must prove that this item of May 31st was actually used in the building, or its case fails.

"There are many cases holding that it is not competent for mechanics by trivial work and trivial alterations to extend the time for the filing of liens. This is the law in all the states where such statutes exist." (Burleigh Bldg. Co. v. Merchants' etc. Co., 13 Colo. App. 455, 59 P. 83; Joost v. Sullivan, 111 Cal. 286, 43 P. 896; Barrows v. Knight, 55 Cal. 155; California Powder Wks. v. Gold Mines (Cal.), 22 P. 391; Harlan v. Stufflebeem, 87 Cal. 508, 25 P. 686; Johnson v. Gold, 32 Minn. 535, 21 N.W. 719.)

In states where the lien for materials is limited to materials not only furnished for but actually used in its construction, the time for filing dates from the last delivery of material used in the building, even though other material was afterward delivered. (Gale v. Blaikie, 129 Mass. 206; Kennebec Framing Co. v. Pickering, 142 Mass. 80, 7 N.E. 30; Barrows v. Knight, 55 Cal. 155; California Powder Wks. v. Gold Mines (Cal.), 22 P. 391.)

It is impossible to segregate the lienable items, if such they be, from the nonlienable items, in the account set forth in the claim of lien, which is, therefore, unavailing for the purposes intended. (Williams v. Coal Co., 25 Or. 426, 42 Am. St. Rep. 799, 36 P. 159; Hughes v. Lansing, 34 Or. 118, 75 Am. St. Rep. 574, 55 P. 95; Kezartee v. Marke, 15 Or. 529, 16 P. 407; Dalles Lumber & Mfg. Co. v. Wasco etc. Co., 3 Or. 527; Williams v. Coal Co., 25 Or. 426, 42 Am. St. Rep. 799, 36 P. 159; McLain v. Hutton, 131 Cal. 132, 61 P. 273, 63 P. 182.)

C. H. Lingenfelter, for Respondent.

The question as to whether or not the plaintiff is entitled to do business under the laws of the state of Idaho is not disputed by the appellants. The defendants, neither by demurrer nor answer, question the authority of the company to do business in this state. This can only be raised by answer, otherwise it is waived. (Ontario State Bank v. Tibbits, 80 Cal. 68, 22 P. 66; Phillips v. Goldtree, 74 Cal. 151, 13 P. 313, 15 P. 451; Southern P. R. Co. v. Pursell, 77 Cal. 69, 18 P. 886-889; Dahl v. Montana Copper Co., 132 U.S. 264, 33 L.Ed. 325, 10 S.Ct. 97; Ency. Pl. & Pr. 89, 90, and cases cited; Wetzel v. Tennis Bros. Co., 145 F. 458.) In the case at bar it is not alleged in the complaint that the corporation is authorized to do business in this state, nor is its right denied either affirmatively or negatively by the defendants. The question cannot be raised in this court for the first time.

There being no issue raised, either affirmatively or negatively, relative to compliance with the laws governing foreign corporations, such evidence will be regarded as immaterial, irrelevant and redundant. (1 Greenleaf on Evidence, sec. 67; 1 Starkie on Evidence, sec. 401.)

As to the items under one contract, the time commences at the date of the last thereof, regardless of the time occupied in the execution of the same. (Fowler v. Bailey, 14 Wis. 125; Hutchins v. Bautch, 123 Wis. 394, 107 Am. St. Rep. 1014, 101 N.W. 671.)

It is the furnishing of material for the building which entitles a party to a lien, and its actual use in the construction thereof need not be shown. (Fitch v. Howitt, 32 Or. 396, 52 P. 194; Frudden Lumber Co. v. Kinnan, 117 Iowa 93, 90 N.W. 515; Lee v. Hoyt, 101 Iowa 101, 70 N.W. 95.) All that is required is that the materials were delivered at the premises. (W. P. Fuller & Co. v. Ryan (Wash.), 87 P. 485, and cases cited.)

If material is delivered in good faith to a subcontractor for use in the construction of a railroad, a materialman is entitled to his lien therefor, in the absence of definite proof that it was not used for that purpose. (Hercules Powder Co. v. Knoxville R. R. Co., 113 Tenn. 382, 106 Am. St. Rep. 836, 83 N.W. 354, 67 L. R. A. 487.)

A lien may be had for materials in good faith delivered at the premises for use in the building, though some of them were afterward used for other purposes. (Kalina v. Stenmeyer, 103 Ill.App. 502; Tennis Bros. Co. v. Wetzel etc. R. R. Co., 140 F. 193; Westinghouse Brick Co. v. Kansas City R. R. Co., 137 F. 26.)

The evidence adduced at the trial consisted of the original entries made by the yardmaster, who placed the materials on the wagon, and also the first entries made upon the books of the company, consisting of the delivery slips for the Nickerson house. Entries made from weight slips are...