Woodbury Lumber Co. v. McIntosh

• Decision Date: 01 June 1965
• Docket Number: No. 744,744
• Citation: 211 A.2d 240,125 Vt. 154
• Court: Vermont Supreme Court
• Parties: WOODBURY LUMBER CO., Inc. v. Charles F. and Alice R. McINTOSH and Reginald T. Abare.

Page 240

211 A.2d 240

125 Vt. 154

WOODBURY LUMBER CO., Inc. v. Charles F. and Alice R. McINTOSH and Reginald T. Abare.

No. 744.

Supreme Court of Vermont.

June 1, 1965.

Black, Wilson & Hoff, Burlington, for plaintiff.

Reginald T. Abare and Joseph Palmisano, Barre, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BARNEY and SMITH, JJ.

BARNEY, Justice.

This case involves a single question, certified here by the lower court, relating to the propriety of its denial of certain motions to dismiss. These motions were all grounded on the simultaneous existence, in two counties, of three separate litigations involving the same parties and based on the same transaction. It was the theory of defendants' motions that this present action should not lie since it was subsequent to, and identical with, one in Chittenden County against Reginald T. Abare, and one in Lamoille County against defendants Charles F. and Alice R. McIntosh.

The constroversy involves equipment and materials furnished by the plaintiff for the construction of a large pole barn on a certain farm in Johnson, Vermont, amounting to a claim of about twelve thousand dollars, including interest. Although the McIntoshes were the owners and occupiers of the farm premises when the construction took place, record title apparently was transferred to Abare about the same time and during the month in which the barn was completed. Then, within a short time, a reconveyance to the McIntoshes appears to have taken place. To perfect a mechanic's lien for the equipment and materials used in the barn construction, the plaintiff brought separate suits under 9 V.S.A. § 1924 against Abare in Chittenden County and the McIntoshes in Lamoille County. These suits were followed in a few days by this Lamoille County action in contract joining both the McIntoshes and Abare as defendants, setting up in the specifications the same equipment and materials costs supporting the actions involving the mechanic's lien, and attaching other property of the defendants. The motions to dismiss were filed in this last action.

The plaintiff emphasizes the fact that the two actions separately suing the defendants are suits instituted to establish a mechanic's lien. Therefore, it says, they do not operate as litigation obstructing the subsequent suit on the contract.

In our law, suit on a claim for a mechanic's lien is essential, under 9 V.S.A. § 1924, to establish the security aspect of the lien against particular property. This lien is not one available in an ordinary contract action, but is a special statutory right. Baldwin v. Spear Bros., 79 Vt. 43, 50, 64 A. 235. It is a security interest in the nature of a mortgage, available at law, effecting a preference. Piper v. Hoyt, 61 Vt. 539, 540, 17 A. 798. It provides for an equity of redemption and operates against the property. 9 V.S.A. § 1925. The defendant in such a case is not chargeable as the debtor, but in his capacity as owner of the property. In other words, the lien suit will not lie against a debtor who is not the owner of the property involved, and the fact that the true owner is not the debtor will not bar the suit for the lien. It runs against the property and is a charge upon it. Goodro v. Tarkey, 112 Vt. 212, 216-217, 22 A.2d 509.

It is unquestionably the rule in this jurisdiction that a defendant is entitled to be protected from vexatious litigation. Louden Machinery Co. v. Day, 104 Vt. 520, 524, 162 A. 370. It is usually stated that the rule for determining when the causes of action are the same, so as to be vexatious and oppressive, is to ascertain whether or not the relief sought in the second action may be fully obtained in the first. Stark v. Crowell, 117 Vt. 413, 416, 94 A.2d 585.

Although not present in this case, there is a distinct but related consideration which is often merged with the foregoing concern for vexation. It comes into play when the previous suit has gone to judgment. In such a case, the former judgment itself may operate, by virtue of res judicata considerations, as a bar to second proceedings. Trapeni v. Walker, 120 Vt. 510, 513-514, 144 A.2d 831. This is a separate defensive principle which would still be available, if appropriate, in spite of a determination, prior to any judgment, that two or more lawsuits were not vexatious. See Gilley...