Wolfley v. Hughes

• Decision Date: 20 March 1903
• Docket Number: Civil 793
• Citation: 71 P. 951,8 Ariz. 203
• Parties: LEWIS WOLFLEY, Defendant and Appellant, v. MOSES HUGHES, Plaintiff and Appellee
• Court: Arizona Supreme Court

71 P. 951

8 Ariz. 203

LEWIS WOLFLEY, Defendant and Appellant, v. MOSES HUGHES, Plaintiff and Appellee

Civil No. 793

Supreme Court of Arizona

March 20, 1903

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Edward Kent Judge. Affirmed.

The facts are stated in the opinion.

J. B Woodward, for Appellant.

The court erred in not sustaining demurrer of appellant, Wolfley for the reason that the lien is claimed under "a verbal contract" and at "a specified price of $125.22," whereas the complaint is for material "of the value of $125.22," for which defendants verbally agree to pay "on demand the said sum of $125.22." Malone v. Big Flat Gravel Co., 76 Cal. 578, 18 P 773; Frazer v. Barlow, 63 Cal. 71.

The lien was filed May 9, 1901, and the items charged of January 14, 1901, were barred as being more than ninety days before the filing of the lien, there having been no contract or continuity of orders, and the court so found. The lien blends in one amount the lienable and the non-lienable articles, and furnishes no evidence in itself by which the one can be separated from the other. It is void. Davis v. Alvord, 94 U.S. 548, 24 L.Ed. 284.

Where lienable and non-lienable items are blended they cannot be separated by oral evidence. Williams v. Toledo Coal Co., 25 Or. 426, 42 Am. St. Rep. 799, 36 P. 161; Hughes v. Lansing, 34 Or. 118, 75 Am. St. Rep. 574, 55 P. 97.

Thomas Armstrong, Jr., for Appellee.

"The rule seems to be that unless there is something to show a willful attempt to claim a lien for non-lienable articles the lien is not lost," and evidence is rightfully received to segregate lienable from non-lienable articles. Gordon Hardware Co. v. San Francisco and S.R. Co., 86 Cal. 620, 25 P. 125; Maynard v. Ivey, 21 Nev. 241, 29 P. 1090; Snell v. Payne, 115 Cal. 218, 46 P. 1069; Harmon v. San F.R.R. Co., 86 Cal. 617, 25 P. 124; Dennis v. Smith, 38 Minn. 494, 38 N.W. 695.

OPINION

DOAN, J.

-- This is an action to enforce a mechanic's lien. The plaintiff in the court below, Moses Hughes, who is the sole proprietor of the foundry known as the Standard Iron Works in Phoenix, Arizona, furnished to the defendants Lockwood & Philes certain castings for the repair of a Huntington mill located on the Sacramento mill-site in Maricopa County. The first casting furnished was ordered on the 14th of January, 1901, at a price of fifteen dollars. This casting proved unsatisfactory, and was broken up and returned to the foundry by the defendants, who were credited with $11.91 as its value for scrap-iron, and upon the order of the defendant Philes the other castings, consisting of a false bottom and three yokes, of the value of $110.22, were then made at the foundry under his supervision, and were delivered to the defendants on February 26, 1901, and used by them in repairing the mill upon the mill-site aforesaid. The castings, except the credit of $11.91, were not paid for. On May 9, 1901, the plaintiff filed his claim for a mechanic's lien upon the aforesaid mill and mill-site, his verified account embracing all the above items at the price of $125.22, and showing the credit thereon of $11.91, stating the balance due to be $113.31, and on July 31, 1901, brought this action for the foreclosure of the mechanic's lien. On March 18, 1901, one C. F. Chapman brought suit against the defendants Lockwood & Philes, attached the property herein mentioned, and recovered judgment therein against said defendants, and thereafter, on July 5, 1901, the property was sold by the sheriff of Maricopa County under the said judgment, and was purchased at the sheriff's sale by Lewis Wolfley.

On the trial of this case Wolfley filed a separate demurrer and answer to the complaint of Hughes, and contested the case in the lower court. The trial court overruled the demurrer to the complaint, and, after hearing the evidence, found that between the fourteenth day of January, 1901, and the twenty-sixth day of February, 1901, the plaintiff, Hughes, at the request of the defendants Lockwood & Philes, furnished and delivered to them certain castings for use upon and in the repair of the Huntington mill situated on the Sacramento mill-site; that the said castings were actually used in the repair of the said mill; that the defendants Lockwood & Philes agreed with the plaintiff to pay therefor on demand; that the castings furnished on the 14th of January were of the value of fifteen dollars, and those furnished on the 26th of February were of the value of $110.22; that the plaintiff duly filed his claim for lien on account of furnishing the said materials on the ninth day of May, 1901, for the purpose of perfecting his mechanic's lien upon the mill and mill-site; that since the furnishing of said materials the defendant Lewis Wolfley has purchased the property in question, and is now the owner thereof; that the said Wolfley had actual as well as constructive notice of the lien of the plaintiff upon the said mill and mill-site prior to the time he purchased the same; that the plaintiff, on account of furnishing the materials on the aforesaid twenty-sixth day of February, is entitled to a lien upon the said mill and mill-site from and since the twenty-sixth day of February, 1901, for the said sum of $110.22; that the defendant Wolfley is a subsequent purchaser of the said property with a knowledge of plaintiff's lien, and his claims and rights in and to the said property are subordinate in time and in right to those of the plaintiff. Whereupon the court gave judgment for the plaintiff for $110.22, and ordered the foreclosure of the lien upon the property for that amount. From this judgment and the order denying a new trial Wolfley appeals, and assigns as error, among others: (1) That the court erred in not sustaining the demurrer of the defendant Wolfley; (2) that the court erred in denying defendant Wolfley's motion to dismiss after plaintiff rested his case; (3) that the court erred in considering any evidence outside of that supplied by the lien in order to segregate the lienable from the non-lienable items therein contained; (4) that the court erred in permitting the introduction of or considering the lien as filed by the plaintiff.

In support of the first error assigned it is urged that the variance between the allegations of the complaint and the statements contained in the verified account, which was filed in compliance with the statute for the purpose of fixing and securing the lien, was fatal to the sufficiency of the complaint. The instances of variance cited, however, seem to us technical rather than material,...