12 Colo. App. 451 | Colo. Ct. App. | 1899
This is an action in which the appellant seeks to enforce a mechanic’s lien for work and labor done upon and materials furnished for the erection of certain mill improvements upon certain mining claims and a mill site owned by the appellees. In order to a proper understanding of the issues, a somewhat lengthy statement of the facts is required. About August 21, 1894, appellees entered into a contract in writing with one W. A. Clark for the sale of the property in controversy for the sum of $65,000, to be paid at certain specified periods. The contract was in the first instance in the nature of a grant of an option to purchase but by its terms became operative, when the first payment should be made, as an absolute contract of sale. One provision of this contract was that at the time of the second payrnent on the purchase price, “ ten thousand dollars additional shall be paid or secured to be paid to the purchasing company, which ten thousand dollars shall be expended in the erection of ten additional stamps to the mill, and the construction of a tramway from the river to the mill, and the balance of said ten thousand dollars shall be set apart as a working capital to be used in the development and operation of the property.” It was also provided in this contract that after Clark or his assigns had paid the sum of $20,000 on the purchase money, and after the further sum of $10,000 had been paid or secured to be paid as provided above, a lease in addition to the contract of sale was to be executed and delivered to the said Clark or his assigns. It was also further agreed that Mr. Robert Billings, or such other person as might be mutually agreed upon between the parties, should act as reponsible manager of the mines and mill. Clark assigned a one-half interest in this contract to Billings, and failing to comply with his contract, Billings elected to proceed thereunder alone. In pursuance of this, on October 2, 1894, a second contract was entered into be
“ To The Allegheny Gold Mining and Milling Company, W. A. Taylor, and John Leonard, and Robert Billings, owners of the following described lots or parcels of land situate in the county of San Miguel.” Here followed a description of the property which it was sought to charge with the lien, and then concluded: “You are hereby notified of our intention to file a statement of mechanic’s lien upon the above described property, on account of work done, and mill machinery and other material furnished at the request of The Allegheny Gold Mining and Milling Company, of the value of 14,472.10 ( dollars of which has been paid,) for the construction of the structure, building and improvement now situate upon said premises.” This was signed by appellant. More than twenty-four hours before the filing of the lien statement, this notice was personally served upon H. A. McIntyre, secretary and treasurer of the Allegheny Gold Mining and Milling Company, and upon Robert Billings. It was not served upon appellees, or either of them. Upon trial, the court fpund that the contracts considered as a whole constituted a contract or agreement of sale; that by their terms the appellees authorized and required the erection of the improvements which were made upon the property, and that the interest of the appellees would be bound, provided that the provisions of the lien act had been complied with. It further found, however, that this notice of intention to claim a lien was
Appellees have assigned no cross-error, and having made no objection, nor taken exception to any of the findings of the court, it will be seen that the sole question before us for determination is the finding of the court that a lien could not attach to the interest of the appellees because of some material defect in or want of service upon them of the notice of intention to claim a lien. In this view of the case, it is unnecessary for us to discuss or advert to the other findings of the court, except so far as they bear upon the determination of the precise question at issue. We simply content ourselves with stating that such other findings of fact by the court and its conclusions of law thereupon, were correct. Although the legal title to the property still remained in appellees, the improvements and work and labor for which the lien was sought were done and made under a contract of sale of the property, by the terms of which the improvements were expressly authorized and required. The findings of the court, and conclusion of law thereon, to the effect that the interest of appellees in the property was subject to a lien for the improvements in question were correct. This conclusion, however, must be based upon the theory that for the purpose of erecting these improvements, the Allegheny Company was the agent of appellees. This doctrine that the interest of the vendor in such cases becomes subject to the liens of those furnishing labor and material for the erection of improvements under a contract of sale, is well settled by a great weight of authority. Shapleigh v. Hull, 21 Colo. 419; Henderson et al. v. Connelly, 123 Ill. 98; Davis v. Humphries, 112 Mass. 309; Hill et al. v. Gill et al., 40 Minn. 441; Bohn Mfg. Co. et al. v. Kountze, 30 Neb. 719; Moore v. Jackson, 49 Cal. 109; Paulsen v. Manske, 126 Ill. 72; O'Leary v. Poe, 45 Mo. App. 567; Boisot on Mechanics’ Liens, § 300, et seq. ;
“Whereas, the said Clark having afterwards refused to make the purchase of said premises pursuant to said option and renounced said option, the said Billings hath elected to proceed with the purchase of said premises under said option pursuant to the terms thereof,” etc. Here it will be seen that the parties expressly designate the first agreement as an option to purchase, but also state that Clark had refused to
This being true, we think that the learned judge was in error in holding that there was not proper service of notice of intention to claim a lien by the appellant. The Allegheny Company being the express agent of appellees for the erection of these improvements, service upon it was service upon the appellees, the owners of the property. This is within a fundamental principle of the law of agency, that notice to an agent, if it concerns a matter within the scope of the agent’s authority and is received during the continuance of the agency, is notice to the principal, the reason of the rule being that for the purpose of the transaction, the two, principal and agent, are identical. Mechem on Agency, § 718; Wade on Notice, §673a.
This is the general rule independent of any statute, but in the present case, the statute by which the rights of the parties to this action must be controlled, expressly provides that the notice in question may be given to the agent of the owner. Laws, 1893, see. 3, p. 318. It being held in this case that the Allegheny Company was the express agent of appellees for the erection of the improvements in question, it is unnecessary to discuss the question raised in the trial court as to the proper construction of section 1 of the lien act of 1893, in respect to its designation of those who shall be held to be the agents of the owner for the purpose of this act. Whether or not the language of this section expressly creates a statutory agent which is the same agent designated by section 3,
Nor do we think that there is any merit or force in the objections of appellees as to the form of this notice of intention. The statute specifies no particular form. It merely requires that written notice of the intention to file such a statement of lien must be given to the owner, his agent or architect. The pith and gist of the statutory requirement is that the owner shall have notice, either by service upon himself directly, or upon his agent or architect, who represents him, that the lien claimant intends to file a statement of lien against his property. It need not be formally addressed to • any one, and this being true, an error in the address, if there is one, is immaterial. If the notice should be addressed to the agent as owner, it would by no means vitiate the notice. The object of the statute would be fulfilled, the proper party would have received notice of the fact, which was all that the statute required. Phillips on Mechanics’ Liens, §367; Shaw v. Bryan, 39 Mo. App. 526.
We therefore conclude that the notice of intention served in this case was a sufficient compliance with the statute, so as to bind appellees, the owners of the property. It would follow from this, the trial court having found all other facts in favor of the appellant, that it would be entitled to a decree for the enforcement of its lien against the interest of appellees in the property involved.
It is urged, however, that even if it be held that the notice of intention was properly served, and was sufficient to comply with the statute as to the appellees, the owners of the property, yet appellant should not have a decree for the enforcement of its lien, because it did not allege in its com
This fully disposes of the case so far as concerns the right of appellant to a lien, and the light to have it enforced against the interest of appellees as well as the interest of Billings, and the Allegheny Company in the property. There remains however a further question, ivhich is material and which must be determined before a final decree can be entered in accordance with the instructions which we propose to give upon remanding the cause. The improvements for which appellant claims a lien seem to have consisted exclusively of the erection of a mill, and the furnishing of mill machineiy for the mill which was erected upon the mill site. It claims a lien, however, not only upon the mill site, but upon certain
This disposes of all that there is in this case, and we can see no reason for a new trial. The matters upon which the determination of the cause depends are documentary and undisputed, it being nowhere pretended that appellant did not make the improvements claimed, nor that they were not of the value charged. It will therefore be the order of this court that the judgment be reversed, and that the cause be remanded with instructions to the trial court to modify its decree so as to give to appellant a lien upon the title and interest of appellees, as well-as of the Allegheny Mining Company in the mill erected and repaired by appellant, the machinery therein, and the mill site upon which it is situate.
Reversed.