White v. Constitution Mining & Milling Co.

• Decision Date: 21 February 1936
• Docket Number: 6224
• Citation: 56 Idaho 403,55 P.2d 152
• Court: Idaho Supreme Court
• Parties: WILLIAM P. WHITE, JOE NEAULT, L. GEORGE KING and JOHN GOLSONG, Appellants and Cross-Respondents, v. CONSTITUTION MINING AND MILLING COMPANY, a Corporation, Respondent, LEWIS C. WILSON, Respondent and Cross-Appellant, And E. I. DUPONT DE NEMOURS & COMPANY, INC., a Corporation, Respondent

55 P.2d 152

56 Idaho 403

WILLIAM P. WHITE, JOE NEAULT, L. GEORGE KING and JOHN GOLSONG, Appellants and Cross-Respondents, v. CONSTITUTION MINING AND MILLING COMPANY, a Corporation, Respondent, LEWIS C. WILSON, Respondent and Cross-Appellant, And E. I. DUPONT DE NEMOURS & COMPANY, INC., a Corporation, Respondent

No. 6224

Supreme Court of Idaho

February 21, 1936

MINES AND MINERALS-MECHANIC'S LIEN-RIGHT TO LIEN-PERSONS PERFORMING LABOR-PROPERTY SUBJECT TO LIEN-NOTICE OF CLAIM OF LIEN, SUFFICIENCY OF-PRIORITY.

1. Person employed by general manager of mine to inspect mine plan, inspect and help with work when necessary, held "person performing labor upon mine or mining claim," within statute giving such person lien against mine or claim for labor performed (I. C. A., sec. 44-501).

2. That notice of claim of lien against mine or mining claim, or claim or statement, includes more property than is properly subject to lien, does not invalidate lien as to land or property properly subject thereto in absence of fraudulent intent or injury to another, and determination of amount of property subject to lien is for court after hearing on all evidence (I. C. A., sec. 44-501).

3. Liens of mortgages, deeds of trust, judgments and other incumbrances including attachments, created subsequent to time when labor lien attaches or subsequent to time to which labor lien relates, are subordinate to liens of claimants for work or labor performed (I. C. A., sec. 44-506).

4. Labor liens relate back to date of commencement of work or improvement or commencement to furnish material (I. C. A secs. 44-501, 44-506).

5. In suit to foreclose labor lien against mining property evidence held to support finding that lien claimants were employed by mining company from designated date to termination of employment of date subsequent to levy of attachment against mining property by judgment creditor (I C. A., secs. 44-501, 44-506).

6. Labor liens against mining property, under continuing contract of employment commencing prior to levy of attachment against property by judgment creditor and ending at date subsequent to levy, held superior to attachment levy in whole amount due under contract (I. C. A., secs. 44-501, 44-506).

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Bert A. Reed, Presiding Judge.

Action to foreclose labor liens. Partial judgment for plaintiffs. Reversed in part, modified in part, and remanded with instructions.

Judgment reversed and modified, and remanded. Costs awarded to appellants King, Neault, White and Golsong. Petition for rehearing denied.

Therrett Towles and James E. Gyde, Sr., for Appellants and Cross-Respondents.

An attaching creditor, when made a party to an action foreclosing a labor or material lien against the attached property, is only entitled to contest the amount, validity and priority of such labor or material lien. ( Continental & C. T. & S. Bank v. Pacific Coast Pipe Co., 222 F. 781, 138 C. C. A. 329.)

The wages of a superintendent are lienable when his employment involves personal manual labor constituting one entire indivisible employment, performance of manual labor bringing the whole service within the lien statute. (I. C. A., sec. 44-501; 40 Corpus Juris, "Mines and Minerals," sec. 845, p. 1166; Idaho Min. etc. Co. v. Davis, 123 F. 396; Thompson v. Wise Boy Min. etc. Co., 9 Idaho 363, 74 P. 958; Naylor v. Lewiston etc. Ry. Co., 14 Idaho 789, 96 P. 573.)

Where labor is performed under a continuing contract of employment, the lien therefor relates back to the date of the commencement of work and attaches as of that date, and such lien has priority over encumbrances covering the same property executed and recorded after the beginning of such work, and over attachments levied subsequently thereto. ( Davis v. Alvord, 94 U.S. 545, 24 L.Ed. 283; 40 Corpus Juris, "Mines and Minerals," sec. 876, p. 1179; I. C. A., sec. 44-506; Pacific States etc. Co. v. Dubois, 11 Idaho 319, 83 P. 513; Mine etc. Co. v. Idaho etc. Mines Co., 20 Idaho 300, 118 P. 301.)

The fact that appellants claimed a lien on more property than was subject to their liens would not invalidate the liens. It was the court's duty to determine what portion of the property should be subjected to the liens under the Idaho statute. (40 Corpus Juris, "Mechanics' Liens," sec. 266, p. 222; Northwestern etc. Pavement Co. v. Norwegian etc. Seminary, 43 Minn. 449, 45 N.W. 868; Maynard v. Ivey, 21 Nev. 241, 29 P. 1090.)

James A. Wayne, for Respondent and Cross-Appellant Lewis C. Wilson and Respondent E. I. DuPont De Nemours & Company.

Plaintiffs were not entitled to liens in any amounts upon any of the property of the Constitution Company for the reasons (1) that they sought to claim liens upon property which was not subject to lien, and also on property which might be subject to liens, without segregating the lienable from the nonlienable property; (2) because they claimed liens for services which were clearly not lienable and also for services which might be lienable, without segregating the lienable from the nonlienable items; (3) because the Constitution Mine at all times after October 9, 1930, was in the custody of the law, and during that time such property was not subject to lien; (4) because there was a break in the continuity of the employment of plaintiffs White and King, and the two periods of their employment cannot be tied in together for the purpose of maintaining liens; (5) because the claims of plaintiffs are so excessive as to indicate bad faith and void their claims of lien. (Hill v. Twin Falls Salmon River L. & W. Co., 22 Idaho 274, 125 P. 204; Nohrnberg v. Boley, 42 Idaho 48, 63, 246 P. 12; Idaho Comstock M. & M. Co. v. Lundstrum, 9 Idaho 274, 74 P. 975; Mendilie v. Snell, 22 Idaho 663, 127 P. 550, 43 L. R. A., N. S., 731; Williamson v. Moore, 10 Idaho 749, 80 P. 227; Riggen v. Perkins, 42 Idaho 391, 401, 246 P. 962; Durkheimer v. Copperopolis Copper Co., 55 Ore. 37, 104 P. 895; Wheatcroft v. Griffiths, 42 Idaho 231, 245 P. 71; Vollmer Clearwater Co. v. Union Warehouse etc. Co., 43 Idaho 37, 248 P. 865; Beck v. Lavin, 15 Idaho 363, 97 P. 1028; Hilton Brothers Motor Co. v. District Court, 82 Utah 372, 25 P.2d 595; Franklin Bank v. Bachelder, 23 Me. 60, 39 Am. Dec. 601.)

Whitla & Knudsen, for Respondent Constitution Mining & Milling Company.

Hawley & Worthwine, on Petition for Rehearing, for Respondent and Cross-Appellant Lewis C. Wilson.

BUDGE, J. Givens, C. J., and Holden, JJ., concur. Morgan, J., dissents. Ailshie, J., did not sit at the hearing and took no part in the decision of this case.

OPINION

BUDGE, J.

The appeals herein seek to determine the priorities in certain property of the Constitution Mining and Milling Company, hereafter referred to as the mining company, as between labor lien claimants, White, Neault, King and Golsong, and an attaching creditor, Wilson.

Chronologically stated, the facts leading up to the time of the taking of the appeals in the instant suit disclose the following situation: The mining company was the owner of mining property in the Coeur d'Alene Mining District in Shoshone County, consisting of a group of contiguous, patented and unpatented mining claims, worked as a unit, with 11,000 feet of underground workings, the whole fully equipped with ore hoists, skips, cages, pumps, compressors, ore cars, locomotives, tramway, crushers, ball mills, thickening tanks, surge tanks, flotation machines, filters, loading equipment, motors, carpenter shop, sawmill, bunk houses, offices, dams, tanks, flumes, and innumerable items of small tools, supplies and equipment for the operation of such a mine.

Prior to July 1, 1930, the mine was actively producing and shipping lead, zinc and silver ore concentrates and employed from seventy to seventy-five men, at which time White was general manager and superintendent in charge of the property. The latter part of June, 1930, production ceased because of a shortage of funds and low silver prices and White at this time tendered his resignation to the president, director and large stockholder of the mining company, Jay P. Graves.

In order to retain a working nucleus and to promote a speedy resumption of production in the future, and to keep the property and mine preserved and protected and in a workable condition, Graves, president of the mining company, made arrangements for the employment of White, Neault, King and Golsong commencing with July 1, 1930. White was employed on the basis of $ 500 per month, $ 300 to be paid in cash and the balance to be deferred until such time as the mine could be refinanced or development and production resumed. White, under instructions from Graves, employed Neault on the basis of $ 225 per month, $ 100 cash, balance deferred; Mr. King, $ 225 per month, $ 125 cash, $ 100 deferred; Golsong, $ 200 per month, $ 100 cash, $ 100 deferred.

Wilson brought suit against the mining company on assigned merchandise accounts, aggregating $ 20,000 on October 8, 1930, and an attachment was levied in such suit on the property of the mining company on October 9, 1930.

On January 31, 1933, claims of lien were filed for record by White, Neault, King and Golsong for unpaid salaries under the before-mentioned employment agreements. The present suit, to foreclose the liens of White, Neault, King and Golsong, was filed July 24, 1933.

Judgment was delayed in the Wilson suit for some time with the object in view that the mining company might be able to refinance itself, until on August 3, 1933, when judgment was entered and on August 22, 1933, and execution was issued on this judgment. Negotiations had been and were being carried on between the directors of the mining company and certain foreign...