Wyman v. Quayle
| Decision Date | 21 February 1901 |
| Citation | 63 P. 988,9 Wyo. 326 |
| Parties | WYMAN, ET AL., v. QUAYLE |
| Court | Wyoming Supreme Court |
ERROR to the District Court, Uinta County; HON. DAVID H. CRAIG Judge.
John Quayle brought the action against William H. Wyman and Jennie E. Woodward to recover a judgment for money and to foreclose a mechanic's lien claimed to have been acquired upon certain property for the amount claimed, the said amount being claimed for certain materials furnished for a certain building erected for the defendants. Judgment was rendered for the plaintiff for the amount claimed, and the same was adjudged to be a lien upon the lands alleged to be covered by the lien. The defendants prosecuted error. The material facts are stated in the opinion.
Judgment Modified.
B. M Ausherman, for plaintiffs in error; Cyrus Beard, of counsel.
The statement of lien filed by the plaintiff is not in accordance with the statutory requirement; it fails to show that the plaintiffs in error or either of them had any interest in the real property sought to be covered. A full compliance with the statute must be shown, and it must be stated in the notice and alleged that defendant had an interest in the realty. (Jones on Liens, Secs. 1392, 1397; Whit. An. Code, p 80; Shaw v. Allen, 24 Wis. 563; Rugg v. Hoover, 10 N. W., 473; Anderson v. Knudson, 22 N. W., 302; Malter v. Falcon M. Co., 2 Pac., 50; Gordon v. Deal, 31 id., 287; Fein v. Davis, 2 Wyo., 118.) The lien law is purely statutory, and the validity of the lien depends upon the affirmative showing that every essential step in the creation, continuance, and enforcement has been duly taken and complied with. (Rankin v. Malarkey, 34 P. 816; Dillon v. Hart, id., 817; Wagner v. Hanson, 37 id., 195; Fernandez v. Burleson, 52 Am. R., 77; Morrison v. Willard, 53 P. 832; Wilson v. Nugent, 57 id., 1008.) It is necessary that the written contract, there being one, should be set out at length in the statement, and if the claim is based upon an expressed or implied contract, to comply with the statute, an itemized statement must appear with the notice.
Although the plaintiff claims in his statement that he was the original contractor, the evidence shows that he was a sub-contractor, and as such his statement of lien was not filed in time. (Lumber Co. v. Lobitz, 46 P. 481.) A lien cannot be filed so as to give a right before the building is completed. (Santa Monica L. & M. Co. v. Hege, 51 P. 555.) Owing to the failure of the statement to set out the name of the owner, evidence as to ownership was inadmissible. (Hays v. Mercier, (Neb.) 35 N. W., 894.) No personal judgment could be rightly rendered against the plaintiffs in error, because the evidence conclusively shows that Quayle contracted with and sold the materials to Langford, the contractor.
John A. Bagley, and Hamm & Arnold, for defendant in error.
The proper interpretation of the statute does not require the name of the owner to be given in the statement of lien, in case the name of the contractor be given. The statute is to be construed as requiring the name of the owner or owners, or the name of the contractor or contractors, or both to be stated; but it is permissive as to whether the name of the owner or the contractor shall be given. If, therefore, the name of the contractor be given, as was done in this case, the name of the owner is not required.
The contract with Langford was abrogated, and a new one made between the plaintiff and defendants. If any defect existed as to completeness or sufficiency of the account which was attached to the statement of lien and the petition, the remedy of the plaintiffs in error was to make a motion to make more definite and certain. (R. S. Sec. 3562; Flander v. Ish, 2 Ore., 320; McKeny v. Goodal, 1 O. Cir. Ct., 23.) There is no statute requiring the written contract to be set out in full. It is immaterial whether the building was completed or not. The plaintiffs in error accepted the building and used it. They cannot accept the fruits of another's labor and be exempt from making remuneration therefor. (Nibbe v. Braughn, 24 Ill. 268; Porter v. Wilder, 62 Ga. 520; Bethell v. Chicago L. Co., 39 Kan. 230; Smith v. Snyder, 82 Va. 614; McClay v. Gluck, 42 N. W., 875.)
The contract with the plaintiff, the material man, was completed; and it could certainly make no difference whether a contract with another was completed or not.
The testimony as to the account was not objectionable because of indefiniteness, as any defect of that character should have been taken advantage of by motion to make definite and certain.
A proceeding to enforce a mechanics' lien is in the nature of a proceeding in equity. The plaintiffs in error are liable for the materials furnished by the defendant in error under the circumstances as shown by the evidence. (Wis. Plan. M. Co. v. Grains (Wis.), 39 N. W., 531.)
This was a suit brought to obtain judgment upon an account for materials alleged to have been furnished by the plaintiff to the defendants in the construction of a certain building, and to foreclose a mechanics' lien upon the premises upon which the materials were used. There was a demurrer to the petition, which was overruled. The court heard the evidence and rendered judgment against the defendants in favor of the plaintiff for the amount of his claim and interest, found that the same was a lien on the premises, and decreed that they be sold unless payment of the amount should be made within sixty days. The defendants appeal to this court. Numerous errors are assigned, a part of which only it will be necessary for us to consider. No exception was preserved to the overruling of the demurrer, and that question is not before us for decision.
It is insisted that the plaintiff acquired no lien upon the premises, for the reason that he failed to comply with the requirements of the statute in the statement of his claim, filed with the register of deeds, and especially in that it does not state the name of the owner of the property.
The requirement of the statute is that he shall file "a just and true account of the demand due him, after all just credits shall have been given, which is to be a lien upon such building or improvements, and a true description of all the property, or so near as to identify the same, upon which said lien is intended to apply, with the name of the owner or owners, contractor or contractors, or both, if known to the person filing the lien." A preceding section of the chapter provides that mechanics or other persons performing work or furnishing materials for any building or improvements shall have a lien "upon complying with the provisions of this chapter."
The lien is exclusively a creature of statute, deriving its existence only from positive enactment. It is a remedy given by law, which secures the preference provided for, but which does not exist, however equitable the claim may be, unless the party brings himself within the provisions of the statute, and shows a substantial compliance with all its essential requirements. Phillips on Mechanics' Liens, Sec. 9. The act in question declares that the persons designated shall have a lien upon complying with the provisions of the chapter, one of such provisions being that an account shall be filed. It is therefore indispensable to the creation of the lien that the prescribed account or statement be filed. And the statement must contain a just and true account of the demand due him after all just credits shall have been given, a description of the property sufficient to identify the same, the name of the owner or owners, contractor or contractors, or both, if known to the person filing the lien, and it must be verified by oath.
These particulars are all material. They are wisely provided for to enable the register of deeds to make the abstract required by the succeeding section; to give timely notice to owners that their property is sought to be charged; and to protect third persons (purchasers or mortgagees) by apprising them of the alleged claim. Beals v. Congregation, 1 E.D. Smith 654; Reindollar v. Ficklinger, 59 Md. 469; Malter v. Falcon Mining Co., 18 Nev. 209, 2 P. 50; Rugg v. Hoover, 28 Minn. 404, 10 N.W. 473; Mayes v. Ruffners, 8 W.Va. 384; Kelly v. Laws, 109 Mass. 395.
The statement filed with the register of deeds in this case, does not set out, and makes no attempt to set out, the name of the owner. Under all the authorities, which are numerous and uniform upon the subject, the defendant in error acquired no lien. There is no allegation in the statement or in the pleadings, and it is not claimed that the owner was unknown. Upon the trial, evidence was introduced to show ownership in the defendant Woodward. It should have been excluded, as irrelevant to any issue in the case, the defendant in error not having taken the required steps to obtain a lien, or to make any evidence admissible in support of his claim for a lien.
Counsel for defendant in error cite several authorities which,...
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