121 Minn. 90 | Minn. | 1913
At the time of the erection of the Badisson Hotel and Annex in ^Minneapolis the appellant Mrs. Edna D. Kruse owned the property. 'The plaintiff in the present action seeks to obtain a personal judgment against her for the reasonable value of services and materials claimed to have been furnished her by him in the erection and improvement of her building and for the costs of the action, including •a reasonable attorney’s fee, and to have a lien adjudged and foreclosed -against the realty for both. To that end Mrs. Kruse’s husband, Simon Kruse, was joined as a party defendant, with others, but no -relief except a foreclosure was sought against him.
The complaint is in the usual form in use in such actions in cases where the right to recover a personal judgment against the owner of ■the realty is based upon the supplying of labor and materials by the ■plaintiff to such owner under an implied contract, without the interposition of a third person as contractor or subcontractor. The items -charged for in the complaint consist of decorations, paintings, fittings, etc., affixed to the walls of the hotel and annex, of the alleged value ■of $3,796.72, and for the value of the labor furnished in decorating the building in the sum of $6,894.56. A further item for tiling was ■claimed in the sum of $2,318.83, but it was conceded on the trial that •the latter had been paid. The balance alleged to be due the plaintiff -from the appellant under the transactions mentioned is stated as $3,-*688. The complaint also alleges the due making and filing of a lien -statement, a copy being made a part thereof, and that a writing attached thereto denominated “Bill of Particulars,” and verified by one
Mrs. Kruse answered separately, her answer, as amended, admitting her ownership of the real estate, denying that the plaintiff furnished to her the items sued for, and alleging that the defendant Simon Kruse accepted a proposal made by the plaintiff to furnish the labor and material in and about the-decoration of the building and annex, and “that she at nó time entered into any contractual relation with the said plaintiff, and the said plaintiff at no time furnished any labor or material at the request or direction of this defendant, but that all labor and material furnished by the plaintiff for the purpose aforesaid was so furnished by him in pursuance to the terms and requirements of said proposal, and the acceptance thereof, as aforesaid;” that payment in full had been made, and that there was nothing due the plaintiff from the defendant Simon Kruse at the time of the bringing of the action; and, further, that under the terms of the contract between the plaintiff and Simon Kruse the installation was to be satisfactory to him, in which condition the plaintiff defaulted, in consequence whereof the defendant Simon Kruse refused to accept the same, and this defendant has refused to accept the said installation because the same was unfit and improper and of no value to her, and that the value of the premises has been -in no wise improved or enhanced “by reason of certain of the installations furnished by the plaintiff, and in particular this defendant states that the installation of mural paintings and wall decorations in that certain room in said hotel building, commonly known as the Yiking room, is not adapted to said room, and not in keeping with the period of time typified by the decoration and construction of said room; * * * that certain .of the papering and decorative work installed by the plaintiff in the rooms and corridors of said building were and are unsatisfactory to this defendant by reason of inferior workmanship,” etc., “and said installation is of no value to this defendant; that the price charged by the plaintiff for the material furnished and work so installed by him in the rooms and corridors of said building, together with the Yiking room, is exorbitant and ex
The defendant Simon Kruse also filed an answer practically identical with that of the appellant, but during the trial application was made by him for leave to withdraw his answer, the record, however, disclosing no ruling thereon. It also appears that at the commencement of the trial the plaintiff, by leave of court, interposed an amended and supplemental bill of items of labor and material involved in the suit.
Upon the opening of the trial, which was to the court without a jury, the defendant moved that the complaint be stricken out, and that the plaintiff’s claim of lien be disallowed on the ground that there was no original bill of particulars attached to the complaint, and “that the second subdivision of the document on file, purporting to be an amended and supplemental bill of items, be stricken out upon the ground that it is not a bill of particulars, a bill of the items of the claims counted upon in the third cause of action of the ■complaint, and that is for labor.” The court severally denied both of these motions, and exceptions were duly taken. The court thereafter found in substance: That the plaintiff did, with the knowledge, approval, and consent of the defendant Edna, and at her instance and request, contribute to the improvement of her said real estate by performing labor and furnishing skill and labor and material for the erection and repair of her building, of the value of $13,010.11, the various items making up this amount being stated, and that on this amount no more than $9,322 had been paid, and ordered a lien on the property for the difference, plus an allowance of $250 as attorney’s fees, and likewise ordered a personal judgment against the appellant for the same amount.
“Each lienholder shall attach to and file with his complaint or answer a bill of the items of his claim, verified by the oath of some person having knowledge thereof, and shall file such further and more particular account, as the court may at any time direct. "Upon his. failure to file such original or further bill, his pleading shall be stricken out and his claim disallowed.”
There is a striking analogy between this section and section 4151,. relating to the delivery on demand of a copy of an account sued upon in an action on an account; and it would seem that the purpose of' both sections is the same, namely, to advise the adverse party of the-details of the demand. Consequently the decisions of this court under the latter section should be deemed pertinent in considering the-meaning and effect of the former, and also upon questions of practice-thereunder.
The original bill of items in this case is very meager, but we are-not prepared to hold it nugatory, so as to require the court to strikeout the pleading. It is true that the evidence discloses that the plaintiff’s agent who verified this bill had little personal knowledge of the-facts therein stated, the verification having been made upon information received from his principal, and that the appellant objected particularly on this account; but this did not necessarily render the-verification insufficient. See Krengel v. Haslam, 118 Minn. 506, 137 N. W. 11. Furthermore, the amended bill was verified by the-plaintiff himself, and we cannot say that it militates against such bill
1. Did the plaintiff furnish the items claimed for the appellant’s building ?
2. If so, were they supplied to her under an implied contract with her ?
3. If so, was the value thereof and the amount unpaid thereon correctly determined?
We are not required to discuss the evidence involved in the determination of the questions of fact by the trial court for the purpose of demonstrating the correctness of such court’s decision. Watkins v. Bigelow, 96 Minn. 53, 104 N. W. 683. See, also, other recent decisions of this court. This rule is, we think, manifestly applicable to this case, and we will enter into such a discussion only to such extent as may seem necessary clearly to present our conclusion. Accordingly, we will say, without more, that the court’s finding that the several items charged for were furnished for the appellant’s building cannot be disturbed.
Next, though not in the order above stated we will consider the appellant’s contention that the evidence of value was wholly insufficient to warrant the court’s determination thereof. It must be noted in this connection that the defendant offered no evidence on this question, and, while the proofs in the plaintiff’s behalf are not altogether satisfactory, we cannot say that the court was manifestly and palpably in error; and these observations are equally applicable to the question of the payments made to the plaintiff. In this connection we have considered, also, the evidence upon the defendant’s point that the court misunderstood it and made double allowances, together with her claim that the court, in any event, was wrong in his determination concerning an item $424.32, and have concluded that the court’s finding must be sustained.
But the appellant contends that all items charged for by the plaintiff were furnished pursuant to a contract between the plaintiff and the appellant’s husband; that, if any personal or other liability for them was incurred by any one, he was the responsible party; that in no event could she or her property be held liable; and that the court
Now, in the present case, the appellant owned the realty, the plaintiff’s work was done thereon and enhanced its value, and the plaintiff might have sought to hold her liable on the contract made with her husband as upon one made with an undisclosed principal, at least as to the items furnished pursuant to such contract. See Popp v. Connery, 138 Mich. 84, 101 N. W. 54, 110 Am. St. 304. Or, as he has done here, he could assume, as she has expressly done, that the husband had no right to bind her, and proceed accordingly. She cannot now, therefore, claim otherwise. The court was right in declining to go into the question of whether she was bound by the express contract, if such existed, and she cannot complain that she has been taken at her word.
We cannot say that the court was not warranted, under the evidence, in concluding that the appellant’s property was subject to a lien, and that she was personally liable as upon an implied contract; and hence discrepancies, if any, between the proofs and the findings are of no consequence. In this connection, see Popp v. Connery, supra, where a wife was held liable upon a contract made by her husband under circumstances closely analogous to those of this case.
Order affirmed.