Wilcox v. Cloward

• Decision Date: 26 March 1936
• Docket Number: 5655
• Citation: 88 Utah 503,56 P.2d 1
• Court: Utah Supreme Court
• Parties: WILCOX v. CLOWARD et al

56 P.2d 1

88 Utah 503

WILCOX v. CLOWARD et al

No. 5655

Supreme Court of Utah

March 26, 1936

Appeal from District Court, Fourth District, Utah County; Abe W Turner, Judge.

Action by Dean Wilcox against Cora Cloward, the Deseret Building Society, and others, in which E. K. Ferguson intervened and defendant building society filed a cross-complaint. From judgments for plaintiff, cross-complainant, and intervener against defendant Cloward, the latter appeals, and from the judgment for plaintiff, declaring his mechanic's lien prior to cross-complainant's mortgage, the judgment for cross-complainant against defendant Cloward in an unsatisfactory amount, and the judgment for intervener against such defendant, cross-complainant appeals.

JUDGMENT FOR CROSS-COMPLAINANT AGAINST DEFENDANT CLOWARD REVERSED, WITH INSTRUCTIONS, AND JUDGMENTS FOR PLAINTIFF AND INTERVENER AFFIRMED.

Christenson Straw & Christenson, of Provo, for appellant Cora Cloward.

Anderson & Cannon, of Salt Lake City, for appellant Deseret Bldg. Soc.

Morgan & Morgan, of Provo, for respondent Dean Wilcox.

Joseph E. Nelson, of Spanish Fork, for respondent, E. K. Ferguson.

WOLFE Justice. ELIAS HANSEN, C. J., and FOLLAND and EPHRAIM HANSON, JJ., concur. MOFFAT, Justice, dissenting.

OPINION

WOLFE, Justice.

We believe that in this case a brief preliminary statement of the issues preceding the statement of facts will permit the reader to follow the statement of facts with a better idea of their significance. The suit involves a contest between the owner of a house, two mechanic's lien claimants, and a mortgagee. Cora Cloward, the owner of the house, claims a homestead exemption and contends that the lien claimants are not entitled to mechanic's liens because she claims (1) that notices of intention were filed too late, and (2) their actions to foreclose were brought too late. She also contests the right of the Deseret Building Society, the mortgagee, hereinafter referred to as the building society, to recover judgment or to claim a lien because she maintains the money for which her note and mortgage were given was never paid to her nor to any one by her authority.

The lien claimant Wilcox contends that he is prior to the mortgagee because he claims his work was started before the mortgage was recorded. Both lien claimants Wilcox and Ferguson joined with Cora Cloward in contesting the right of the mortgagee to have a lien. On the other hand, the mortgagee joins with Cora Cloward in her claim that she has a homestead, for thus the lien claimants could not collect against the homestead, but the mortgagee, if it prevailed in its assertion that the mortgage was a good lien against the property, would not be subject to the homestead. See Volker-Scowcroft Lumber Co. V. Vance, 32 Utah 74, 88 P. 896, 125 Am. St. Rep. 828. The mortgagee also joins with Cora Cloward in her effort to prove the lien claimants too late in filing their notices of liens and in bringing their actions. It can thus be seen that each party in its endeavor to defeat the claims of the other will be standing sometimes with and sometimes against the others, depending upon where its interests lie on any particular issue.

With the claims of the parties roughly in mind, we may proceed to narrate the facts in order to see how they illuminate the issues. On May 12, 1930, Cora Cloward and the Pacific Building & Finance Company, a corporation, hereinafter in this opinion called the finance company, entered into a contract under the terms of which the former, as buyer, agreed to buy from the finance company, as builder, a house to be built according to certain plans and specifications for the sum of $ 2,790, $ 100 down, $ 550 when the contract was signed, $ 1,000 when the materials arrived, $ 500 when the building was up to the square, and the balance of said contract price when the building was completed. The contract further provided that, "It is mutually understood that a loan is to be arranged from the Deseret Building Society for the financing of the house and that the above payments may be affected by the rules of said loan company." Miss Cloward paid $ 650 at the time of the signing of the contract. She paid nothing more on the contract.

On May 31, 1930, Miss Cloward signed a note for $ 1,800 in favor of the building society and executed a mortgage to secure its payment on the real estate on which the finance company agreed to build the home. She never dealt with any of the officers of the building society directly. The blank note and mortgage were brought to her by a Mr. Gease who was an officer in the finance company. These were executed by her and handed back to Gease. It was testified that either Mr. Gease or Mr. Pyper, both officers of the finance company, dealt with the building society in negotiating the loan. Cora Cloward never personally received any money from the building society, nor was it ever deposited in any bank in her name or on her behalf. Miss Cloward was absent from Salt Lake City from June 12th to the middle of August, sojourning in St. Louis. During her absence and after her return there was advanced to the finance company by the building society a total sum of $ 1,786 in three payments, as follows: June 16, 1930, $ 500; July 29, 1930, $ 400; September 15, 1930, $ 846; and September 15, 1930, $ 40.

On June 2, 1930, Dean Wilcox, the plaintiff, and the finance company, as the original contractor, entered into a contract to have Wilcox do the excavation and cement work, the carpenter work, the plastering, and the lathing. On August 7, 1930, E. K. Ferguson, intervener and respondent, entered into a contract with the finance company to install the plumbing and heating fixtures and to construct the cesspool.

There is no dispute as to the above facts. On these facts and others in regard to which there was conflicting testimony, which we shall later recite, the court found as follows: That the reasonable value of the labor and materials furnished by Wilcox, the plaintiff, was $ 1,059.68; that he was entitled to a first lien ahead of the mortgagee for that amount, plus interest at the rate of 8 per cent from the 11th day of November, 1930, in the sum of $ 280, and $ 2.60 for preparing and recording notice of intention of claiming mechanic's lien; $ 16.40 for moneys expended for publishing notice of lienholder's claim; and $ 25 attorney's fee; making a total of $ 1,383.88 in favor of Wilcox. The court found that there was no authority given to the building society for turning the money for which the Cloward note and mortgage were given as security to the finance company, but adjudged the building society to have a second lien subsequent to the Wilcox lien for $ 774.97, together with interest from the 10th day of February, 1932, amounting to $ 127.43 and $ 100 attorney's fees, or a total of $ 1,042.40. We shall later discuss the theory upon which the court arrived at this figure. Even upon the court's theory, there are evidently some arithmetical errors in the calculation.

The court gave judgment that Ferguson have a lien subsequent to that of the building society for $ 229.75 with interest thereon from the 6th day of December, 1930, of $ 59.73, and $ 25 attorney's fee, or a total of $ 314.48. The finance company defaulted upon a stipulation that no deficiency judgment be taken against it. There is also a stipulation that no judgment should be taken against the defendants Pyper, Gease, Page, and Morris. The Provo Brick & Tile Company and the Bonneville Lumber Company did not appear at the trial, but no proof to support any judgment against them was introduced. No findings of fact, conclusion of law, or judgment appear in respect to those two companies.

Miss Cloward appealed from the judgment in favor of Dean Wilcox against her and from the judgment in favor of the building society against her and from the judgment in favor of Ferguson against her. The building society appealed from the judgment in favor of Dean Wilcox making him prior to it and from the judgment in its favor against Cora Cloward on the ground that the judgment was insufficient. It also appealed from the judgment in favor of Ferguson against Miss Cloward. Since the judgment in favor of Ferguson gave him a lien subsequent to the building society, it is difficult to see how it was harmed by that judgment.

The first dispute as to the facts arises as to when Wilcox began work. He testified that there were stakes put on the premises on the 4th of June, 1930, and that he began excavating on the 5th of June. Spencer Banks testified that he worked under the direction of Wilcox and that he commenced work on June 5th. The building society mortgage was recorded on June 6th. There is no evidence that Wilcox knew at the time he started work that there was a mortgage executed and the court found that he did not know. Miss Cloward testified that when she left Salt Lake for St. Louis on June 12th there were no stakes set not any excavation work begun. Mrs. Arminta Watters, a sister of Miss Cloward, testified that no stakes had been set or work done before the 4th of July, but seemed uncertain as to why she knew that. The court found that the plaintiff performed the first of the labor on the 4th day of June, 1930, and performed the last of his labor on November 11, 1930.

In an equity case it has been the rule of this court not to disturb a finding of the lower court on contested or conflicting evidence unless the evidence clearly preponderates against the conclusion of finding. In a sense, the witnesses as to the time when work began were all interested. The court had a chance to observe their demeanor while on the stand. The finding of the court that the work of Wilcox was begun before the 6th day of June will therefore...