Wertz v. Lamb

• Decision Date: 22 June 1911
• Citation: 117 P. 89,43 Mont. 477
• Parties: WERTZ v. LAMB et al.
• Court: Montana Supreme Court

117 P. 89

43 Mont. 477

WERTZ v. LAMB et al.

Supreme Court of Montana

June 22, 1911

Appeal from District Court, Gallatin County; Sydney Fox, Presiding Judge.

Suit by C. F. Wertz against W. W. Lamb and others to establish a mechanic's lien. From a judgment sustaining a motion for nonsuit and from an order denying new trial, plaintiff appeals. Reversed and remanded.

F. H Mehlberg and Hartman & Hartman, for appellant.

B. B Law, for respondents.

HOLLOWAY J.

This action was brought to recover $157.70 and costs, and to establish and foreclose a mechanic's lien. The complaint alleges that in June, 1909, the plaintiff entered into a contract with the defendants W. W. Lamb and Roama M. Lamb, by the terms of which he agreed to furnish materials and do work for which the defendants Lamb agreed to pay him certain prices aggregating $157.70; that plaintiff fully performed his part of the contract, completing the work on August 7, 1909; that defendants have failed and refused to pay him any sum whatever; and that on August 14, 1909, he filed for record his claim for a lien. A copy of the lien is attached to and made a part of the complaint by reference. The complaint also contains a description of the property sought to be charged, and it is alleged that, while the defendant McDonald has some interest in the property, the real owners are the defendants W. W. Lamb and Roama M. Lamb. A joint answer was filed by the defendants, which admits the ownership of the property to be in the defendants Lamb, and admits the filing of plaintiff's lien on August 14, 1909. There is an affirmative defense by all of the defendants and a counterclaim by defendants W. W. and Roama M. Lamb. The cause was tried to the court without a jury. At the conclusion of plaintiff's case, the defendants by a joint motion moved for a nonsuit, specifying several different grounds. The motion was sustained and a judgment rendered and entered that plaintiff take nothing, and that defendants recover their costs. From that judgment and an order denying his motion for a new trial, the plaintiff appealed.

1. Upon the assumption that the lien itself is invalid, the judgment is nevertheless erroneous; for the plaintiff was prima facie entitled to a personal judgment against W. W. Lamb and Roama M. Lamb, if his complaint states a cause of action for money due, and the proof sustained it. In Western Plumbing Co. v. Fried, 33 Mont. 7, 81 P. 394, 114 Am. St. Rep. 799, we reviewed the former decisions of this court, and held that, even though the plaintiff fails to establish his lien, he may still have a personal judgment in the same action against the person liable for the material furnished or work or labor done. The complaint in this instance clearly states facts sufficient to constitute a cause of action for money due, and there is not any contention made that it does not; but it is insisted that there is a fatal variance between the allegations of the complaint and the proof, in these two particulars: (1) Plaintiff "alleged a contract with W. W. Lamb and Roama M. Lamb, and submitted his proof showing only an agreement with W. W. Lamb." (2) Plaintiff "al-leged a contract showing an agreement to do a good ordinary job, and his testimony shows that he agreed to do a good job."

In their counterclaim the defendants W. W. Lamb and Roama M. Lamb allege affirmatively that they employed plaintiff to do the work described in the complaint, and, having thus admitted that the contract was made by both, they cannot now be heard to say that it was not, or that there is a material variance between the plaintiff's pleading and the proof in this respect. The defendants W. W. Lamb and Roama M. Lamb are bound by the position which they assumed in their pleading; and defendant McDonald, having joined with them in the motion for nonsuit, will suffer with them, if the order was erroneous as to any of them. Capital Lumber Co. v. Barth, 33 Mont. 94, 81 P. 994.

The plaintiff alleges that he was employed to do "a good, ordinary job." The evidence tends to show that he was to do an "ordinary job," or "a good job," or "ordinary, just a good job." Section 6585, Revised Codes, provides: ""No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits." We do not think there is a court in the land which would hold that the slight, technical variance above is material. The proof follows the pleading substantially, and this appears to be all that is required. Robinson v. Helena Light & Ry. Co., 38 Mont. 222, 99 P. 837; Yancey v. Northern Pacific Ry. Co., 42 Mont. 342, 112 P. 533; Barrett-Hicks Co. v. Glas (Cal.) 111 P. 760. The plaintiff having shown prima facie that he is entitled to a personal judgment in this action, the judgment denying him any relief whatever is erroneous and must be reversed.

2. The lien which is attached to the complaint does not follow the exact terms of the statute. Section 7291, Revised Codes, provides that the lien claimant must file with the county clerk "a just and true account of the amount due him, after allowing all credits," etc. The notice of lien in this instance states: ""That there is due and owing to said C. F. Wertz from W. W. Lamb and Roama M. Lamb, husband and wife, of Bozeman, Montana, after allowing just credits and offsets, the sum of one hundred and fifty-seven and 70/100 (157.70) dollars." It will be observed that the word "all" before the word "credits" in the statute is omitted in this lien notice, and the word "just" inserted in lieu thereof.

The right to a lien is given by statute, and the statute must be complied with substantially in order that the lien may be created. McGlauflin v. Wormser, 28 Mont. 177, 72 P. 428. Our present Code provision is substantially the same as section 6, c. 40, p. 510, of the Laws of 1871-72, and in Black v. Appolonio, 1 Mont. 342, this court in construing that section said: "It appears to us that all our statute requires is that a person wishing to avail himself of the benefits of it should honestly state his account;" and this has been accepted as a correct interpretation ever since. Western Iron Works v. Montana P. & P. Co., 30 Mont. 550, 77 P. 413; Mills v. Olsen, 43 Mont. --, 115 P. 33.

As disclosed by the remarks made at the time the nonsuit was granted, the trial judge apparently entertained the idea that the lien notice must have attached to it a verification, in form similar to that required for pleadings. In this instance the entire lien is in form an affidavit with an itemized statement attached. Section 7291 above provides that the lien shall be ""verified by affidavit." The word "verified" means to confirm by oath. Anderson's Law Dictionary. "An affidavit is a written declaration under oath." Rev. Codes, § 7988. In Western Plumbing Co v. Fried, supra, this court said: "The statute provides that the lien is made up of, first, the account; second, the description of the property; and, third, the affidavit." But this language was employed in speaking of matters of substance, and not of form. In Bethell v. Chicago Lumber Co., 39 Kan. 230, 17 P. 813, the statute considered provided: "Any person claiming a lien as aforesaid, shall file in the office of the clerk of the district court of the county in which the land is situated, a statement setting forth the amount claimed, *** verified by affidavit." And the court said: "The statement constituting the contract and the lien were all included in the affidavit; and the plaintiff in error contends that because of this fact there was no lien. It does not to us seem material whether or not the facts alleged and set out, which, if true, entitled the claimant to a lien, are set out in a statement by themselves, and an affidavit attached thereto, or whether all these facts are embraced in the affidavit itself." Substantially the same doctrine is announced in Boisot on Mechanics' Liens, § 450; Rockel on...