145 Minn. 133 | Minn. | 1920
Lead Opinion
This action was brought under the mechanic’s lien law to enforce a claim for making alterations and repairs in a building known as the Hotel Landour in the city of Minneapolis. The trial court directed that judgment be entered against the owners of the building for the sum of $249.01, with interest, costs and disbursements in favor of plaintiff, and for the sum of $47.93, with interest, costs and disbursements in favor of defendant Worthingham, another lien claimant, and that these judgments be declared liens on the property and that the property be sold to satisfy such liens. The owners made a motion for a new trial and appealed from the order denying their motion.
The owners practically conceded plaintiff’s claim, but as an offset thereto alleged and sought to prove a counterclaim in excess of the amount of -plaintiff’s claim. The court excluded this counterclaim, on the ground that it’ sounded in tort and did not arise out of the transaction pleaded in the complaint and was not connected with the subject of the action. The owners challenge this ruling as error.
A brief outline of the facts is necessary to understand the situation.
The written contract was between plaintiff and Floan & Leveroos only. The owners not being parties to this contract, the court correctly ruled that under the pleadings they were not in position to enforce a claim for damages' predicated upon a breach of its terms. Consequently the claim for loss of rent was properly excluded, as it was based on an alleged breach of a stipulation in this written contract. But if plaintiff, in performing this contract, negligently caused damage to the building, the owners could maintain an action therefor in tort independently of the contract, and,
The statute permitting counterclaims is remedial in its nature and to be liberally construed to the end that 'the rights of both parties may be determined in a single action. What may be interposed as a counterclaim on the ground that it is “connected with the subject of the action” is not as clear and well defined as we might desire, although many cases involving particular counterclaims have been, before the court, to a few of which we will refer.
In Barker v. Walbridge, 14 Minn. 351 (469), it is said that a cause of action in defendant, if connected with plaintiff’s cause of action “so that the determination of plaintiff’s cause of action would not do exact justice, without at the same time determining defendant’s cause of action,” is within the statute.
Goebel v. Hough, 26 Minn. 252, 2 N. W. 847, was an action for rent, and the defendant was permitted to interpose a counterclaim for damages for wrongfully entering upon and interfering with his use of the premises.
Lahiff v. Hennepin County C. B. & L. Assn. 61 Minn. 226, 63 N. W. 493, was an action by a mortgagor to reform the mortgage. The mortgagee interposed a counterclaim to foreclose the mortgage as reformed, and also interposed a second counterclaim to reform and foreclose a second mortgage on the same property. In sustaining the second counterclaim the court observed:
“The second mortgage is not one arising out of the contract or transaction set forth in the plaintiffs’ complaint as the ground of the plaintiffs’ claim or cause of action, but it is connected with the subject of the action, because it is a mortgage between the same parties upon the identical piece of land described in the first mortgage.”
Hackett v. Kanne, 98 Minn. 240, 107 N. W. 1131, was an action to enjoin defendant from trespassing on plaintiff’s land, and it was held that defendant could interpose a counterclaim to have the boundary line between his land and that of plaintiff determined.
Wild Rice Lumber Co. v. Benson, 114 Minn. 92, 130 N. W. 1, was an action to enjoin defendant from interfering with plaintiff’s logging
In the present case the purpose was to fit the ground floor of the building for the use of the tenants as a store, and to make such changes and repairs in other parts of the building as the changes in the ground floor rendered necessary. To accomplish this purpose plaintiff was employed to do the entire work, and two contracts, which between them were intended to cover the entire work, were made with him at the same time and apparently as parts of the same transaction, and the work under both was performed as parts of a single project. By his negligence, while engaged in performing the part of the work embraced in the written contract, plaintiff caused injury and damage to that portion of the building on which he performed the part of the work for which he now seeks to recover. We are of opinion that the claim for this damage was “connected with the subject of the action” within the meaning of the statute when liberally construed, and that the owners had the right to interpose it as a counterclaim.
Defendant Worthingham filed his lien statement on July 3,1914, showing that the last item of his'claim was furnished on April 7, 1914. He did not file an answer asserting his lien until August 12, 1915. As the statute provides that the answer shall be filed with the clerk of the court and that no other notice of the claims of the answering defendant need be given to other parties, the answer is of no effect until so filed. The statute further provides that no lien shall be enforced, unless asserted by complaint or answer within one year from the date of furnishing the last item set forth in the lien statement, and it becomes important to determine whether a lien ceases to exist at the end of the year, or whether this-provision is in the nature of a statute of limitations, which is not effective unless asserted as a bar to the right to enforce the claim.
Section 7, chapter 90, of the Statutes of 1878 provided that the lien statement when filed within the prescribed time “shall, during all the period of time from the commencement of such labor or skilled ser
In Smith v. Hurd, 50 Minn. 503, 52 N. W. 922, 36 Am. St. 661, the court in holding, that the summons had not been served on certain defendants in time to preserve the lien as against them said-: “1878 G. S. ch. 90, § 7, was not an ordinary statute of limitations limiting the time for commencing an action, but it put a limit to the life and duration of the lien.” Burbank v. Wright, 44 Minn. 544, 47 N. W. 162, is to the same effect.
In 1889 the legislature embodied the mechanic’s lien laws in chapter 200, p. 3-13, of the laws of that year, and repealed all laws-inconsistent therewith. This act became sections '6229 to 6246 inclusive of the Statutes of 1894, and has remained in force, with only minor changes, until, the present time. This law in section 6236, Statutes of 1894, provided that a lien statement of the prescribed form and filed within the prescribed time :
“Shall operate to continue such lien during all the period of time, from the time of the furnishing of the first item of such labor, skill, material or machinery until the expiration of one year after the time of furnishing the last item of the same;” and further provided in section 6238 that ’ ■ ,
“Every action to enforce any such lien shall be commenced within one year from the time of furnishing the last item of labor, skill, material or machinery for which such lien is had.”
This statute changed the period during which the lien should continue from two years after the completion of the work to one year after the, furnishing of the last item of the claim, and added the provision that every action to enforce any such lien should be commenced within such year. Under this statute each lien terminated at the end of the year and could not be enforced unless the proceeding to enforce it was begun within the year. Steinmetz v. St. Paul Trust Co. 50 Minn. 445, 52 N. W. 915; Malmgren v. Phinney, 50 Minn. 457, 52 N. W. 915, 18 L.R.A. 753; Sandberg v. Palm, 53 Minn. 252, 54 N. W. 1109; Burns v. Phinney,
“No lien shall be enforced in any case unless the holder thereof shall assert the same, either by complaint or answer, within one year after the date of the last item of his claim as set forth in the recorded lien statement; nor shall any person be bound by the judgment in such action unless he is made a party thereto within said year.”
Sections 3511 and 3515 of the Revised Laws of 1905 are respectively sections 7036 and 7030 of the General Statutes o;f 1913.
Under the statute as construed prior to the revision of 1905, the lien terminated at the end of the year, except that an action to enforce it, begun within the year, could be prosecuted to a final judgment thereafter. Unless the changes "in the statute made by the revision of 1905 operated to change the effect of the prior statute in this respect, the lien still terminates at the expiration of the year.
In the revision of 1905, it was not the purpose of the legislature to enact a new body of laws, but to make, a restatement of the previously existing general statutes in a more compact and orderly form, with such changes and amendments as were necessary to bring the various acts into a harmonious whole and make clear the meaning of conflicting, ambiguous or doubtful provisions. A previously existing statute is presumed to have continued unchanged in substance, unless the intention to change it clearly appears from the language used in the revision, when taken in connection with the subject matter of the act and its previous history, and a change in phraseology does not necessarily import an intention to change the substance or effect of the statute. Dunnell, Minn.
It follows that Worthingham’s lien had ceased to exist before he attempted to assert it. By filing his answer, he, in effect, commenced an action to foreclose his lien, and made the owners parties thereto as of that date. As this was not done within the year, the last provision of the statute quoted bars a judgment of foreclosure.
Defendant Worthingham insists that the point that he failed to file his answer within the year was not raised in the court .below and should not be considered on this appeal. The rule invoked is applied only where it clearly appears that a claim or theory presented to this court was not presented to or determined by the trial court, and even in such eases the rule is seldom, if ever, applied where it conclusively appears that the point'urged could not have been cured or avoided by amendment or other evidence. White v. Western Assurance Co. 52 Minn. 352, 54 N. W. 195; Chicago, M. & St. P. Ry. Co. v. Sprague; 140 Minn. 1, 167 N. W. 124. After Worthingham had submitted his evidence, the owners made a motion to dismiss his claim, “on the ground that they have "failed to show facts sufficient to constitute a cause of action.” In his answer Worthingham alleged that he had been employed by plaintiff, who was the general contractor, and did not allege that he had been employed by the owners. But he was permitted to testify without objection that he had been employed by both plaintiff and the acting owner who were together at the time. The fact that he had been employed, and had performed the work alleged and had not been paid, was undisputed, but the owners insisted that he had not been employed by them, but by plaintiff. If employed only by plaintiff he was not entitled to a personal judgment
Tbe court found that he was entitled to a personal judgment against both plaintiff and the owners for the sum of $47.93, with interest thereon from April 7, 1914, and was entitled to have this judgment decreed to be a lien on the property, and to have the property sold to satisfy it. The finding that Worthingham was entitled to a personal judgment for the amount above stated is sufficiently sustained by the evidence, but the finding that he was entitled to a lien is not justified by the record.
It appears that after Worthingham had interposed his answer in this action he cited defendant Metzger, the acting owner, to appear in the conciliation court of the city of Minneapolis, and presented in that court, as a claim against Metzger, the same claim for services which he asserted in this action, and that that court rendered judgment against him and dismissed the action. The claim of the owners that that judgment barred his right to proceed in this action cannot be sustained, as it does not appear that the issues here involved were determined by that judgment and the parties are not tbe same.
Tbe order denying a new trial of tbe issues between plaintiff and the owners is reversed and a new trial granted. The order denying a new trial of the issues between defendant Worthingham and the owners is affirmed insofar as it relates to the issue in respect to a personal judgment, but is reversed insofar as it relates to the issues in respect to a lien.
Dissenting Opinion
(dissenting).
I dissent:
It is doubtless true that this statute of limitations puts a limit on the life and duration of the lien. It is true also that this statute need not be pleaded against a defendant lien claimant. But in this case, there is neither pleading, proof nor finding, nothing in the record on- the sub
