W. Bateson & Co. v. Baldwin Forging & Tool Co.
| Decision Date | 02 February 1915 |
| Docket Number | 2524. |
| Citation | 84 S.E. 887,75 W.Va. 574 |
| Parties | W. BATESON & CO. v. BALDWIN FORGING & TOOL CO. ET AL. |
| Court | West Virginia Supreme Court |
Submitted January 26, 1915.
Rehearing Denied April 20, 1915.
Syllabus by the Court.
The lien of a subcontractor, filed pursuant to section 3, chapter 75, serial section 3844, Code 1913, containing an itemized account of bricks furnished from time to time, is not void on its face or in fact, because it contains a lump credit for 187,000 bricks, furnished, but not used in the construction of the building.
The decree below adjudging to such lienor the balance claimed by him for said material, and as a valid lien upon the property of the owner, and that such itemized account was served upon the owner and filed in the clerk's office, within the time required by the statute, facts put in issue by the pleadings, is amply supported by a reasonable view of the evidence.
The fact that a portion of the bricks so furnished was used in constructing a well on adjoining land with right appurtenant to the property of the owner and attached to and connected with the same by means of pipes, etc., and necessary in the operation of his plant, does not render the lien therefor on said plant invalid.
That such subcontractor or materialman at the time of contracting with the principal contractor for such material, or while furnishing the same, may have been advised that a portion thereof was to be used by the principal contractor in other buildings than the one covered by his contract with the owner on whose property the lien is asserted, will not defeat the lien for the bricks actually furnished and used in the structure on the property of such owner.
Though material furnished by a subcontractor be charged in a general account with the principal contractor, the subcontractor will nevertheless be entitled to the lien given by statute therefor, to the extent of the material so furnished and actually entering into the construction of the building on the owner's land, if such material was in fact furnished with reference to and in execution of such contract of the principal contractor.
Payments made by a principal contractor on his account with such subcontractor, if not otherwise applied by him, may be applied by the creditor or by a court of equity to the oldest items in the account, so as not to defeat the lien for the material furnished by such subcontractor, and actually entering into the construction of the building contracted for.
A subcontractor contracting to furnish the material and labor and perform a portion of the contract of the principal contractor, for a stipulated price, has a lien therefor, and such lien is not invalidated because his account is the lump sum stipulated, and is not otherwise itemized, nor because the labor was not performed by him personally. In such case the account filed with the lien setting forth the contract price is all that is required.
In a suit by owner against contractor in a building contract for breach thereof by the latter, the measure of damages is the amount of the loss sustained by the former by reason of the breach. And where workmanship or materials prove defective and inferior the owner will be required to pay only what the building is really worth.
Appeal from Circuit Court, Wood County.
Suit by W. Bateson & Co. against the Baldwin Forging & Tool Company and others. From a decree for plaintiffs, defendants appeal. Affirmed.
H. P Camden, of Parkersburg, and William P. Herod, of Indianapolis, Ind., for appellants.
Kreps Russell & Hiteshew, McCluer & McCluer, and Smith D. Turner all of Parkersburg, for appellees.
Plaintiff, as principal contractor, sued defendant, to enforce against its property their alleged lien for labor performed and material furnished in the execution of a contract to construct a factory building in accordance with the plans and specifications covered by the contract, impleading also numerous subcontractors who are alleged to have performed labor and furnished material in the execution of said contract.
Answers and cross-answers were filed by the Baldwin Forging & Tool Company, and by several of the subcontractors, and answers to said cross-answers of the subcontractors were also filed by the Baldwin Forging & Tool Company.
After issues were joined on these pleadings the cause was referred to a master, to report the property of defendant company, and the several liens thereon, and the priorities thereof, and from the decree on that report and the several exceptions thereto, the Baldwin Forging & Tool Company has appealed, and Bateson & Company, without itself applying for or obtaining an appeal from the decree against them in favor of appellant on its cross-answer, for $22,893.15, and as found by the commissioner, have attempted to cross assign error, on appellant's appeal from the decree against it in favor of other appellees, and adjudicating large sums against its property in their favor, and enforcing the liens therefor.
We will first consider and dispose of the errors assigned and relied on in the decree respecting the
Lien of C. H. Shattuck, Special Receiver.
The first point of error raised by demurrer to the cross-answer, and by exceptions to the commissioner's report, overruled, is that the account served on appellant and recorded, and exhibited with the bill, is not such an itemized account as is required by the statute to constitute a good and valid lien on appellant's property. In support of this proposition it is said, and the fact is, that the account begins with an item on September 1, 1910, and then continues with numerous intervening items down to and including two items of November 26, 1910, the first for 11,900 bricks, by L. S. & M. S. Car No. 31797, the second, 4,500 bricks, hauled by wagon, all totaling 526,100 bricks, at $7.50 per thousand, or $3,945.75. And that following these items and footings is an item under August ___, 1910, 295,716 bricks, $2,217.87, and after them the credit item, October 4, 1910, $2,217.87; and then the following credit under date 1910, month and day not indicated:
The contention is that as the credit item, 187,000 bricks, is not itemized, and the account on its face does not show what items on the debit side are covered by this credit item, so as to identify and enable the owner to definitely trace the same, it is not an itemized account within the meaning of section 3, chapter 75, serial section 3844, Code 1913, and is therefore void on its face, and that the demurrer to the cross bill answer, and appellant's exceptions to the commissioner's report, allowing the same, should have been sustained, and relief denied.
If on its face the lien is void, as contended, the demurrer and exceptions to the commissioner's report properly presented the question. Hill Clutch Co. v. Independent Steel Co. of America, 82 S.E. 223. The statute. section 3, chapter 75, serial section 3844, requires an itemized account, and section 4, serial section 3845, of the same chapter, requires that within sixty days after ceasing to labor on, or furnish material, the person desiring to avail himself of the lien provided by the statute, must file with the clerk of the county court, " a just and true account of the amount due him, after allowing all credits, together with a description of the property," etc. Lumping items, or lumping estimates, at least on the debit side, will not do. Niswander & Co. v. Black, 50 W.Va. 188, 40 S.E. 431. In the case last cited, while the lien was held bad as to the lumping estimate therein, it was held good as to all items properly itemized. So, an account containing items furnished beyond the period of nine months from the date of the notice to the owner, contrary to said section 3, of chapter 75, was held good as to the items furnished within that period. Huntington Plumbing & Supply Co. v. McGuffin, 83 S.E. 194. The lump credit of 187,000 bricks in the account now under consideration, however, shows that of the whole number of bricks, itemized on the other side of the account, that number, whether furnished for the purpose of constructing the defendant's plant, or not, did not in fact go into that construction, for they are credited back, and a lien is not claimed for them. The question recurs, is the account void on its face for this reason?
True, as argued, the demurrer, if they be well pleaded, admits the facts alleged, but if the exhibit vouched therefor contradicts or conflicts with the allegations we take the exhibit as showing the facts and not the allegations of the pleading. Richardson v. Ebert, 61 W.Va. 523, 56 S.E. 887; Board of Education v. Berry, 62 W.Va. 433, 436, 59 S.E. 169, 125 Am.St.Rep. 975; Lunsford v. Wren, 64 W.Va. 458, 466, 63 S.E. 308; Lumber Co. v. Railway Co., 69 W.Va. 682, 688, 72 S.E. 786; Plaster v. Harmon, 70 W.Va. 634, 636, 74 S.E. 905. And in a suit to enforce a mechanic's lien, if the bill and exhibits read together, show all the facts necessary to be alleged, the bill is sufficient in law, and the demurrer should be overruled. Grant v. Cumberland Valley Cement Co., 58 W.Va. 162, 52 S.E. 36. By these authorities either party may look to the exhibit on demurrer, and neither is bound by any of the allegations in conflict or inconsistent therewith. Is this lien void then on its face, regardless of what is said about it in the other part of the pleading?
It will be observed that the statute requires an itemized account of the labor done and material furnished by a subcontractor "for the construction, alteration, * * *...
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