68 W. Va. 396 | W. Va. | 1910
In May, 1901', Elizabeth Deskins'made a verbal contract with W. B. Elswick, afterwards reduced to writing, under which
H. T. Williamson, furnished Elswick some material entering into the construction of said theater, and he filed a mechanic’s lien against it therefor, and for its enforcement he brought a chancery suit in the same comt.
The A. H. Beall Hardware Company furnished some materia] to Elswick entering into the construction of said .theater, and filed a mechanic’s lien against it therefor, and brought a suit for its enforcement in the same court.
John P. Wayman did the electric light wiring of said theater under contract with Elswick, furnishing material therefor, and he filed a mechanic’s lien against the theater therefor, and he filed his petition setting it up in the suits and asking the enforcement of his lien.
The said causes were heard together. There were other claims involved in the suits not necessary here to be specified. During the pendency of the litigation Elswick and Deskins made a written agreement, 26th February, 1908, reciting the pendency of Elswiek’s suit, and that certain material and labor claims were being asserted as liens on the theater and lots, which were of intricacy, and that Elswick had theretofore made said assignment to the Mingó Lime & Lumber Company for a j>ortion of the mechanic’s lien, and then providing that after the amounts of the material and labor claims alleged to constitute liens on said property' should be fully adjusted and Deskins and
■ An order was made referring the cases to a .commissioner to report what liens, whether mechanic’s liens or others, existed against the said property and their priority. The commissioner made a report reporting as valid liens those of Williamson, •Mingo Dime & Lumber Company, Beall Hardware Company, the Wayman lien and Eliswick’s lien, finding a balance after those other liens due Elswick of $1,569.75'. ,
On the 3rd of October, 1908, a decree was entered in the causes holding that Elswick was indebted to the Beall Hardware Company $251, constituting a lien on the theater property, and to Wayman $346.1$, also a lien, and that Elswick was indebted to Williamson $1,507.38, also a lien, and the Mingo Lime & •Lumber Company $838, the debt secured by said assignment, to it, and some other lien debts not involved, and declaring them .liens on the said property and subjecting it to sale, and providing that the decree should not bind Elswick and Deskins as between themselves from asserting in .any court of law the claim of one as against the other, and the matter of amount due .on final settlement between them is not passed upon, but is dismissed therefrom without prejudice to one 'as against the other. From said decree Elizabeth Deskins appeals.
The Mingo Lime & Lumber Company’s Case.
It is objected by counsel for the appellant' that it was error 'to decree this debt in advance of a decree finding the true amount of indebtedness between Elswick and Deskins; that until that amount should be fixed and adjudicated by .decree as between them there could not be a decree 4n favor'of the Mingo Com
'Williamson’s Cáse.
It is objected that the bill of Williamson is defective in not alleging that by the contract between Williamson and Elswick for furnishing the lumber the lumber was to be used in constructing the theater and was so used. As a legal proposition •we do not deny this; but we meet it by saying that the bill, fairly construed, does meet this requirement. The clause of the bill in this respect alleges, “That in the construction of said building the said defendant, W. B. Elswick, entered into a contract with this plaintiff, whereby the said plaintiff in pursuance thereof, furnished material to the said Elswick to be used in the construction of said theater building and which went into the erection and construction of said building, which material consisted of lumber”, etc. This shows that the agreement 'was that the lumber was to be used in the building, and was so used.
We think the account is sufficiently definite. The law cannot require every little piece of lumber to be separately specified in a great building. This account under a certain date gives eleven specifications of numbers1' of pieces of lumber and their dimensions^ making up 8,000 feet, and on another date charges 8,000 feet of- dressed poplar, and gives the lump price of $850 for all under those two dates. That is sufficient. Was Williamson .required to detail the sizes and character of poplar plank ? Shall we: so construe the mechanic’s lien law as to
It is objected that the building was completed August 16, 1907, that the last lumber furnished by Williamson was on that date, and that the lien was not filed until more than sixty days ■thereafter, and it was thus too late, and that notice of his lien was not given until thirty-seven days thereafter. Evidence shows that on the 22nd day of September, Williamson furnished a piece of lumber, and on October 29th furnished 100 feet of lumber -|-x|-, and that this lumber was put into the building and essential to it. This would bring the notice within the time prescribed by law. Are we to say, as counsel would have us say, that this last lumber constituted a separate contract and cannot be tacked to the other lumber? Elswick swears that he put some of this lumber into the building on the 26th day of October. The piece of lumber was used in the fly trap for letting the stage curtains down. This was an essential part of the work. The evidence is that the large glass for the front window was broken causing the delay, and that other glass had to be obtained, and that it was put in on the 29th of October, and the 100 feet of lumber furnished by Williamson was used in so doing. Dow, this lumber was used in essential parts of the theater, and the building was not complete until it was done, and it cannot be said that the furnishing of the lumber was more than thirty-five days before notice to Deskins, nor .that the building was completed until that lumber was furnished. True, the price charged for that lumber furnished the 22nd of September and 29th of October was small, $1.90, but if it was essential, and it was, it would save the balance of the account. It is charged by counsel that the building was really completed except for this small quantity of lumber, and that it is a trick of Williamson and Elswick by collusion to say that the contract with Williamson had not been completed 16th August, and to save the account by these additional items of lumber. That is assumption; no evidence sustains this charge of collusion. It is claimed that the theater was turned over to Mrs. Deskins before these two items of lumber were furnished. T'he evidence does show that a few days before it was furnished theatrical performances were had therein. That may very well be with
The Beall Hardware Company’s Case.
Here it is objected that the bill filed as Exhibit No. 5 what is alleged to be the mechanic’s lien and that it does not appear on inspection of that exhibit that it was sworn to. Of course, the account filed in the clerk’s office as a lien must be sworn to; but the answer to this point is met by a decision of this Court in Houston Lumber Co. v. Welzel & Tyler R. Co., this term. ■ It holds that though an exhibit'does not show the fact of filing the lien in the cleric’s office, yet if the bill alleges that fact and it is not denied in the answer the allegation is taken for true, though the exhibit does not sustain the allegation. That holding is that if the exhibit do not contradict the allegation, the allegation is taken for true. This point rests on a demurrer to the Hardware Company’s bill. Its allegation is that it made out a mechanic’s lien and that it “was duly sworn to on the day and date aforesaid by C. P. Roach, president of the A. H. Beall Hardware Company, a corporation, before G. M. Millard, a notary public of said county; and that on the 30th day of November, 1907, the said instrument was duly admitted to record in the office of the Clerk of the County Court of said County; all of which 'will better appear from a copy of said instrument of writing or Mechanic’s Lien, which is herewith filed, marked ‘Exhibit No. 5’, and asked to be made a part of this bill and read in connection herewith.” So there was no error in overruling the demurrer for that cause. - But it is objected that that affidavit to the notice of lien given by the Hardware Company to Deskins and the affidavit to the lien in the clerks office do not state that the material was used in
Wayman’s Case.
As to this case it is objected on demurrer to the petition filed by Wayman, that there is no allegation in it that Wayman within sixty days from the time of doing the work and furnishing material had his lien recorded in the clerk’s office. This is the allegation of the petition as to this: “Petitioner further says that within thirty-five days from the time said labor and material was furnished for said opera house under the contract aforesaid, he filed with the said Elizabeth Deskins, the owner, an duly itemized statement of the work done and materials
Hpon a review of this case we do not see that any injustice 'lias been done, the debts being just, and we do not find any substantial ground for a reversal of the circuit court, and therefore affirm the decree.
Affirmed.