Crane & Ordway Co. v. Baatz

164 P. 533 | Mont. | 1917

MB. JUSTICE SANNEB

delivered the opinion of the court.

The correctness of the judgment from which this appeal is taken depends upon whether the plaintiff has a valid lien, under section 7291, Bevised Codes, upon the property of the respondent Nick Baatz. As and for such lien the plaintiff filed in the proper office a document comprising: (1) An unsigned notice of lien claim, reciting, among other things, that the claimant furnished certain materials for the Nick Baatz building, erected on lot 1, in block 414, of the original town site of Great Falls, Cascade county, Montana; “that the value of the said materials amounted to the sum of $2,707.93, as will more fully appear, reference being had to an itemized statement of account of said materials hereunto annexed, marked ‘Exhibit A,’ and hereof made a part”; (2) the following matter, just after the notice: “ [Venue.] Charles S. O’Brien, being first duly sworn, on oath deposes and says: That he is the managing agent for the Crane & Ordway Company, a corporation, the party in the f oreging notice of lien and statement of account of the amount due said Crane & Ordway Company for the materials therein described, after allowing all credits and offsets; that said notice and statement contains a correct description of the property to be charged with said lien; and that all the facts stated in said notice and statement are true. C. S. O’Brien, Managing Agent for Crane & Ordway Company. On this 3d day of February in the year 1914, before me, Julius C. Peters, personally appeared Charles S. O’Brien, known to me to be the managing agent of the Crane & Ordway Company, the corporation that executed the within instrument, and acknowledged to me that such corporation executed the same. Julius C. Peters, Notary Public for the State of Montana, residing at Great Falls. My commission expires December 19,1916. [Seal.]” (3) Forty-five typewritten pages of figures headed, “Exhibit A, Itemized Statement of Account,” followed by (4) this matter: “[Venue.] C. S. O’Brien, being first duly sworn, deposes and says that he is the local manager of the Great Falls branch of the Crane & Ordway Company, a corporation existing under and by virtue of the laws of the state of Minnesota; that he has read and examined the within account; that it is true of his own knowledge; that the said account is just; that the balance of twenty-seven hundred seven dollars ninety-three cents ($2,707.93) is wholly unpaid. C. S. O’Brien. Subscribed and sworn to before me this 3d day of March, 1914. E. H. Schmidt, Notary Public for the State of Montana, residing at Great Falls, Montana. My commission expires July 8, 1916. [Seal.] ”

[1] The trial court held this document to be ineffective to create a lien, because it does not purport to be “a just and true account of the amount due * * * after allowing all credits, and containing a correct description of the property to be charged, * * * verified by affidavit,” as required by law; and this conclusion is assailed as a violation of the well-known rule that mechanics’ lien laws are remedial, and therefore to be liberally construed and applied. Counsel mistake, and therefore misapply, the rule they seek to invoke. It is that, the necessary steps having once been taken to secure the lien, the law is subject to the most liberal construction, for it is remedial in character, and rests upon broad principles of natural equity and commercial necessity. But the special right acquired in virtue of a mechanic’s lien is purely statutory, and the manner of securing it, by perfecting the lien, consists of various steps, which are also statutory, and must be strictly followed. (Stritzel-Spaberg Lumber Co. v. Edwards, 50 Mont. 49, 54, 144 Pac. 772; McGlaufiin v. Wormser, 28 Mont. 177, 181, 72 Pac. 428.)

[2] The present case has to do with the means taken to secure the lien. “The paper containing the account, description, and affidavit is deemed the lien,” and while certain errors in the account or description may not invalidate the lien, the affidavit is essential, and must' go to both the account and the description. (Rev. Codes, sec. 7291.) It will be observed that the only effort to verify the description, as such, occurs in the matter marked (2) above, which contains no jurat, or other intimation by anyone authorized to administer oaths, to show that any oath was taken; on the contrary, it proves, if anything at all, that C. S. 0 ’Brien acknowledged that the corporation claimant executed the notice. By no liberality of construction can the matter embraced in item (2) be called an affidavit. (Rev. Codes, sec. 7988; Metcalf v. Prescott, 10 Mont. 283, 294, 25 Pac. 1037.)

The appellant, conceding, as it must, that the affidavit should verify the other two things necessary to make up the lien, to-wit, the account and the description, insists that the affidavit which appears at the end of “Exhibit A, Itemized Statement of Account,” that is to say, item (4) above, does so because the “account, ’ ’ to which it refers, means the narration embraced in the entire document, including the description. If this were true, the lien should be sustained, for no set form or order is required (Wertz v. Lamb, 43 Mont. 477, 482, 117 Pac. 89); but the true meaning of “account,” as used in section 7291, is not as contended, and is not the meaning intended to be conveyed by the affidavit, item (4). This affidavit does not assume to verify the description at all, and does not verify the account itself as the statute requires. The account must be a just and true one, “after allowing all credits,” and must be verified as such. The purpose of the affidavit is clear enough. It is not merely to entitle the lien claim to record, hut to furnish a sanction for it in such an oath as will subject .the affiant to punishment for perjury if it be false in material particulars. No such result could follow here, even though the description in item (1) were wholly false, or the account in item (3) were altogether untrue and unjust, “after allowing all credits.’’

The judgment appealed from is affirmed.

'Affirmed.

Mr. Justice Holloway concurs. Mr. Chief Justice Brantly, being absent, takes no part in the foregoing decision.