13 Colo. App. 455 | Colo. Ct. App. | 1899
A judgment ought never to have been entered against the sureties on the bond. This matter is very easily demonstrated by a comparatively brief consideration of the terms of the instrument and of a few facts respecting the contract under which the brick was sold. There are many questions suggested by the record which if decided would necessarily call for the construction of a number of the provisions of the lien act of 1893. While this construction is requested and a good deal of argument directed to the propositions which would compel the consideration, we cannot easily imagine the necessity to consider them, though possibly there may be other suits pending in which a decision of some of these matters would be desirable. The act of 1893, however, has been repealed and a new act was passed in 1899. The later act, of course, contains many of the provisions of the act of 1893 as well as some additional ones, as the last legislature, like all others which have legislated on this question, has attempted to broaden the statute and enlarge the rights and further secure the interests of the material men and builders. We have already had occasion to animadvert on this species of legislation, but it may be wisest for the courts to construe the acts which the legislature has passed and not criticise the policy which has led to the enactments. The repeal, however, and the change in the act is a complete excuse for our refusal to consider any other questions than those which are absolutely indispensable to the determination of the present appeal. We shall therefore only consider those matters which we regard as vital, and which being determined adversely to the appellee, must reverse the judgment.
The statement shows the bond was executed by the Burleigh Building Company and the O’Donnells as sureties, on a condition in effect that the Burleigh Building Company should pay any judgment which should be legitimately
There is another proposition to which we will advert as it will have a good deal of bearing on the subsequent trial. According to the statute if the brick was sold to Snell as a contractor, he was bound to file his lien within a fixed time and if a subcontractor within another fixed date, and in any event according to section 6, the lien could not hold the property more than four months after the completion of the structure or improvement unless an action should be commenced within that time to enforce it. By the provisions of section 3 a cessation of labor on any unfinished building is the equivalent of completion. We are quite unable to determine Snell’s connection or relation to the contract. The contract was a verbal one and the evidence does not disclose whether it was made with Burleigh or whether it was made with Snell or with both. If Snell was the original contractor and the Merchant Building and Brick Company was a subcontractor, this latter company was bound to file its lien within thirty days from the time the structure was completed. The structure would be legally completed by the cessation of labor for more than thirty days. The record shows the work stopped in May and nothing was done until after the lien'was filed and probably not until after the suit was commenced. When the structure was completed for the purposes of the act the Merchant Brick and Building Company was bound to file its lien
There are many cases which hold that it is not competent for mechanics by trivial work and trivial alterations to extend the time -within which the lien may be filed. This is the law in all states where such statutes exist. It would therefore follow, work of this sort established only by the evidence offered without more, would not be held to be a continuance of labor for lien purposes. The plaintiff declared in his lien statement that June 1 was the date when the building was completed. He likewise so pleaded it, and when he amended, inserting the 10th of June, it in no manner destroyed the force of the admission found in the statement and in the original pleading, and this cannot be overcome by the evidence which the case contains. The work had ceased and was completed on the 1st of June unless the little painting that was done on the cornice was done by the owner, the contractor, or in the interests of one or both of them and in the interest of the one and the execution of the contract by the other. How can we tell from this testimony who did the painting, for what purpose it was done, and in whose interest it was prosecuted? It may have been done by some person other than the contractor or by some person other than any contractor on the building, by some person other than the owner, or by some person who bore no relation to either. If this should turn out to be the fact counsel for the appellee would hardly contend it would operate to fix the point at which work ceased and the building was completed for the purposes of a lien statement. Unless on the subsequent trial the appellee is able to produce other evidence it must be found the work was finished on the 1st of June, the lien should have been filed on the 1st of July, the suit begun on the 1st of November, and that neither the lien was filed nor the suit
There is another proposition to which we will refer, although it does not seem to have been much relied on by counsel. In the judgment entered there was a proviso that plaintiff’s attorney should have $50.00 attorney’s fees. The appellants insist this is not right because there was no evidence offered from which the valrfe of those services could be determined and on which it could be computed. We agree in that respect, and do not believe it is competent for the court to enter judgment for attorneys’ fees without some evidence to show the services performed and the value of what was done. There is a question beyond all this, and much more troublesome to the plaintiff, and which is the law in this jurisdiction until it shall be otherwise determined. There can be no judgment for attorneys’ fees under the law of 1893. We considered this question in a recent case, and held the act in this respect invalid. Los Angeles Gold Mining Co. v. Campbell, ante, p. 1.
We would not reverse the case on this ground because it would be very easy to reduce the judgment by that sum and affirm it as to the difference. Under our statutory authority this we should undoubtedly do were it not for the- other propositions which compel us to reverse the case.
For the reasons already given the judgment will be reversed and the cause sent back for further proceedings in conformity with this opinion.
Reversed.