*1 Corpo- Wyoming SELLERY, INC., a ARCH co-part- Miracle, ration, and Lierd and below), nership, Appellants (Defendants SIMPSON, doing as Natrona business
Curt Appellee Roofing Company,
(Plaintiff below).
No. 2980. Wyoming.
Supreme Court of
April 11, 1961. Williams, appel- Casper,
Houston G. for lants.
Harry Leimback, Casper, appellee. E. for BLUME, PARKER, J., Before C. McINTYRE, HARNSBERGER and JJ. opin- PARKER delivered the Justice ion court. second before us
This case Simpson, roofing plaintiff In 1957 time. contractor, a labor and sought to foreclose defendants, Arch Sell- material contractor, Inc., bankrupt, general ery, then building, Lierd owners resisted Defendants Miracle. Simpson’s work sub- had been ground ninety days completed more than stantially filed, contending that lien was before only work within the done sealing, the slight, ninety-day period, trivial and purpose keeping of either for the done lien. district reviving alive plaintiff. ap- On gave judgment for noted, Sellery, Arch Inc. v. peal, this court Simpson, Wyo., *2 912 furnishing faulty pleaded workmanship labor
plaintiff had
of
material.”
plans
The
pursuant
nothing
oral contract
and
to an
said
sealing
material
point
“provide
such
but
wording,
but at the trial had
of
contained the
made no
required
roof
thereof.
drains of
and had recited no details
size and number to
contract
run-off,”
Agreement”
yr.
roof,”
paper
built-up
A
handle
“20
and
termed “Sub Contract
Sellery
Simpson
drawings
signed by
stop,”
and
several
gravel
Mrs.
of “G. I.
and
evidence,
was
termed
was introduced in
but this
one
“cant.”
witnesses as a
applicable
all sub-
merely a Ditto form
This court said in Barlow v.
provisions
containing
contractors
no
and
Makeeff,
171,
1093,
Wyo.
74
284
that
P.2d
roofing. The
peculiarly applicable
in construing
and
contract
determining
point
in issue
timeliness of the
was the
parties
the intention of the
and the mean
ninety
required
made within
to be
ing
gathered primarily
are
from the con
indebtedness,
days
after
accrual of the
the writing
tents of
itself
am
if it is not
depended upon
in
certain
which
this case
biguous. However,
that
is well settled
sealing
roofing.
We
that since
held
only
a contract includes
what
not
is stated
important part
was not
of the contract
necessity
expressly but also that which of
rely upon
improper
in
was
evidence it
implied
language.
from its
Severson
practice
testimony
necessity
and
and
1022;
Barstow,
526,
103 Mont.
63 P.2d
accordingly
the cause for
remanded
furth-
360,
Gottstein,
Stusser v.
178
P.
Wash.
proceedings.
er
2d
Hutchinson v. Reclamation District
1619,
Cal.App.
supplementary
hear No.
P.
ensuing
At the
787.
testimony
objected
ing,
When
contract
a war
defendants
contains
ranty
necessity
insisting
express
implied
either
practice,
that un
that
and
plans
speci
pur
will be
der this court’s
and
sufficient for
certain
pose,
performed
fications
the contract and were
not
until
constituted
susceptible
explanation.
accomplishes
agreed
The
the work
result.
trial
objections
Wiesner,
admitted Glass v.
238 P.2d
overruled the
and
Kan.
712; City
practice.
judgment
Stucker,
evidence of
A
en
of McPherson v.
valid, and Kan.
decreeing
tered
the lien to be
Kan.
think our for the ex correct, ruling neer, Pancratz, roofer, briefly and what clusion of evidence of is considered quoted previous opinion, proper industry interpreta in an plaintiff, page According at to the tion would constitute the em portions required sealing, two of the roof ployment jacket, but of a allow strait scuppers May to which he gave at- evidence without reference to the na stops gravel tention on March 29 and the wholly might nullify of the contract ture which In were too wet sealed. then parties agreed. which hearing, supplementary Simpson said plans specifications applicator that he was Ruberoid and fol- which we specifications their in installa- thought clarify well lowed this might matter tion, “scuppers, got disappointing in their lack of refer- were sealed,” completely you and that seal the problem issue. di- ence inspector specifications Jacobs, “It will roof or leak.” an allusion to roof in rect representative addendum, Contractor manufacturer’s “Roofing inwas Company, plans provide Ruberoid admitted that year guarantee written 10 “Q. vague you uncertain If I tell were were to specifications [a scupper] just dis- requirement sealing, and in set on the finished as to the cussing necessity situation made several would there be the general significant. statements which some manner? A. make roof is A. wording got require days? It is a ing to take care of specification why on subcontractor, be a half a “Q. Well, “Q. year a 20 a 20 Well, absolutely, general And there is roof only going Mr. year specification, you year roof, you of those year if Simpson, where to seal practice roof. would specifications which weakest that does it if the nothing in the last you as have you specify a gravel you the part maybe are say— got may- haven’t putting roofing stops ? year that five go- A. which we A. necessary to I don’t think do it.” be a satisfactory job, garding cause “Q. *3 good job, yes. [*] comply scuppers That’s It is they And [*] whether or not with these apparent right, don’t tell your do certain you previously [*] relation that is a normal answer would have to do it job you specifications [*] so that it is that things mentioned that to the actual you it * * * ijt might authorities have to around right? would job, n be- re- be custom, evidence usage, and regarding Well, “Q. you asking I am tell practice in the ad building industry was me. AA. roof to be interpret missible to meaning of waterproofed if going it is to be Moreover, parties. between the specification, year twenty, respect the trial court’s in that was ruling leaking year.” can’t following start conformity opinion heretofore Wehrli, defendants, by an architect called rendered. plans specifications said that the were argue Defendants that the case does not vague requirement and contained no about question turn being of the sealing sealing. He was asked: part of the contract since the “Q. impossible, Now it is substantially completed ninety more than Wehrli, put is it not to on a de- days prior to the time filing of by specifica- going by scribed here They lien. maintain construction tions, you go would have elsewhere placed upon by parties the contract specifications to find out what the were (as themselves such actions were delineated year pound for a 20 up felt built prior opinion, in our P.2d at page 1070) roof, you Well, would not? A. completion. shows Defendants also specifications roofing, call for a certain urge that the citation of General Fire Ex- you I don’t know what would do tinguisher Co. Schwartz Bros. Commis- case, in this flashing have to do some- Co., sion 165 Mo. in our S.W. thing, suppose. I previous opinion, P.2d at page [*] “Q. * [*] ** n bedding or something [*] [*] [*] trine shows this court’s substantial recognition completion. of the doc- necessary gravel is over those stops, is reading As a of our former Yes, that not ? correct A. true. reveal, assumptions will neither of these * * * “Q. you agree Now gist since our warranted discussion expert with the done, other if isn’t that in order for the lien to valid bedding kind, or a felt sealing some based will leak down wall ? A. requirements. In that connection it may It sure will. to consider the following language be well
[*] [*] [*] [*] n [*] the Missouri case, 65 S.W. at page 321: “ * ** ** * up process formed in the finishing counsel are off, when will to ex- position that be sufficient tapering in their correct substantially completed, tend the notice of * * * im- complete, it as lien. The test trivial contractor tenders owner, perfections said to be follows: accepted it is as such as perform- afterwards, imperfections at 'Are the in the the contractor cannot ance char- instance, against the will of the work so trivial in his own permit acter the contractor owner, perform part some contract, performance?’ but recover for substantial was called for which had been omitted con- » n n [*] portant ly substantial supplied. is found Basically then, any to run under that the limitation parties, and delivered contract where the correct accepts On of run until the deed, completed, contractor few trifling od for struction, mentioned, triviality do them being accepted done, determination building filing from between interpretation other A is is done.” completion, and as to Wilcox good to furnished, and so afterwards, cannot promise building his last item called for particulars remaining hand, thereby extend the for analysis lien. And it date in lieu of the owner. owner, items v. so-called be divorced treated does it of is at least as those parties. or of Cloward, of is as is the lien the contractor which are the last work not the equally substantially such promise the actual question doctrine of begin law is also delivery * * all by the only a 88 Utah by the begins owner question former- clear *4 peri- later to * im- a problem, which concluded the contract and the of person length berger factors were to be other tion volves installation of vinces ultimate [*] stances long trier of fact to our own determination of sidered called to our It is not which “Our [*] performance they may jurisdictions we and therein claiming *» dealt with the us that for in good which think is reaction to the authorities factor necessary, independent research, the actual period of 794, 797, 798, Judge faith attention, Sawyer have been light to good is the reaction of conflicting considered, significant close cases where the for pointed the critical date bearing trifling however, of all the or the solution v. very necessity with a statement problem as Sawyer, Wyo. bad faith of the completed. well as from construction. out on the minor items justly service, testimonies here: not the least to circum- of at some refer to ques- Harns- of con- con- pro- of many in- this He 1, 6, 7, P.2d it is said: where though theory defendants’ Even “ * * * plausible, adjust- the case is Trivial or minor found trial them, casually after and it long recog made been long ments case used nized that when a tried to cannot be a court main work jury different on to as the labor done or without conclusions can tie if Especially rationally is this drawn furnished. the evidence materials purpose. trial they are made for that is one for the if case court’s determina true jobs v. where bona fide tion. Sowers Iowa Home Mutual But even small Cas complete ualty Company, Wyo., which the Insurance made P.2d Robinson, Wyo. 1, duty complete, Hench if claimant n pre- Considering after that which was the main work P.2d long too made original completed, especially supplementary at the part seated if per- hearing, there was larger similar or tasks think substantial chain of we subsequent was in added to the account evidence to that date. show On December part Roofing fact the contract. 1956 Natrona integral an Co. gave ten-year .guarantee on the roof. Affirmed. Then Simpson on March claims Mr. Lierd building called said his whom HARNSBERGER, Mr. Justice leaking on the Regarding west wall. joins, concur- Mr. BLUME Chief Justice call Simpson Mr. “Well, I testified: took ring. granted it was the Building, Shell point upon in this which decision I there, went down enough and sure it was ninety-day period case turns is the date the a-leaking on the west wall bad.” question an ex- There is no commences. comple- tension of The date of that time. He then May, related that he and Mr. provide tion of the a roof contract to new owner Roofing Co., of Natrona used ninety-day began. the date the limitation gallon plastic along cement top merely place materials west wall. He testified that neither he nor place of a it. does not May did further work after that. protect Those materials be so laid as to Whether the work March'29, re- *5 building from the or else it elements quiring time, less than an hour in was done being fails a Materials left un- roof. in fulfillment guarantee of the gratui- tight sealed and not water not conform tously separate or as a job, plaintiff did not requirement. to this When evidence showed pretend say. however, apparent, to It prevented earlier weather conditions that such work was not added to the October completion roof, de- 31, 1956 account. It was not claimed in the layed completion date of the contract filing lien as an lienable item. additional sufficiently explained. the owner When Thus, me, it seems to the account lacked elected to call in another contractor to seal continuity 31, from October 1956 to March acknowledged contracted 29,1957 major- to such other date as the —or completed. work had been It also re- ity opinion purports fix as the date duty any further lieved the contractor from original which the indebtedness accrued. complete However, his contract. continuity obviously Such would be essential completion by sealing, ultimate of the roof 8, to make filing May on 1957 effective. performed another, though by even started Inasmuch as the item in included running of the time within which the filed, lien statement, as back to dated Oc- required. of the lien was 31, 1957, days tober prior more than 90 Any prospective purchaser proper- May 8, filing, it cannot be said that ample opportunity ty protect himself has plaintiff complied provisions with the by simple lien encumbrance in- 29-11, W.S.1957, asserting in his lien. § quiry. If by which is restricted time stat by ute can be indefinitely thus extended acts McINTYRE, dissenting. Mr. Justice kind, of this (90-day) limitation fixed purchaser buy Hereafter no can real legislature in which file this class Wyoming, in no lending estate institution utterly lien can and will be and com a loan thereon and no title in- can make pletely defeated, every so in case where company can insure the title there- surance right existed, a a to file lien has ever 90-day reliance lien affi- property may title to the for an indefinite been used in this which has state davit period remain in an unsettled and not as immemorial. time condition, with reference certainable to the and claimed in character and extent of the lien as filed this case mechanic’s lien may claimed prop work materials furnished which covers 31, erty. For holding for on or about this statement and and billed October 1956. see otherwise, item, Henderson, 1, single lienable or a was Gatchell v. Neb. Not N.W. 321; Property (1957 Thompson on Real Peterson, 136 227; Co. 2d Disbrow & v. Replacement) 220; Lumber 719, § Gem State Neb. N.W. P. 1027. Witty, Idaho Co. v. dealing situation We here with Liens
Also Mechanics’ see 57 § party to the where the owner was not C.J.S. following: p. 661, for the knowledge, and had no involved constructive, plaintiff actual or either substantially “After obligation right to do claiming unnecessary no there “completion meantime said work.” In the fully delay com- or unreasonable accepted owner work; the time pleting job, paid original contractor finished by a be extended filing a cannot put possession. and had into full tenant to do delay for considerable law, if requirements process due necessary to full piece of work small equity, operate compel not of should * * subcontractor-plaintiff put owner manner, effect are Fox & Co. Roman same in some if the subcontractor notice right, Bishop going continuing of the Diocese of Baker claim a without Catholic continuing knowledge without the 557, 215 P. General City, 107 Or. owner, beyond 90-day Extinguisher Co. v. Schwartz Bros. Fire statutory period. Co., 165 Mo. Commission S.W.