3 S.D. 118 | S.D. | 1892
The appellants, at the time of the commencement of this action, were dealers in lumber and other building material in the city of Sioux Falls, S. D. The respondents EL J. Davenport and Rebecca Subera were the owners of the west one third and middle one third of lots 16, 17, and 18, in block 17, Bennett’s addition to Sioux Falls, S. D.; EL J. Davenport being the owner of the middle one third of said lots, and the respondent, Rebecca Subera, being the owner of the west one third of said lots. Respondent A. S. Leonard, prior to the commencement of this action, entered into a joint contract with respondents Davenport and Subera, whereby he agreed to furnish all the material and labor and erect for said respondents a dwelling house and an outhouse on each of the above-described pieces of property; also a barn, which was to stand upon the center or dividing line between said property, for which he was to receive a stipulated sum of money. The buildings were erected as per contract by respondent Leonard. There still remains due and unpaid on this contract a large sum of money from respondents Davenport and Subera to respondent Leonard. On or about April 7,1888, the appellants entered into a contract with respondent Leonard, by which they were to furnish the necessary lumber and other building material for the erection of the above-named buildings, and for which the respondent Leonard was to pay them the sum of $2,087.72. The lumber and material were furnished by them as per this contract, but the respondent Leonard is still, owing them the sum of $335.45. For this balance the appellants have filed their claim in the office of the clerk of the district court of Minnehaha county, verified by the affidavit of the bookkeeper and agent of the appellants, and seek to assert a joint lien upon all the land and all of the buildings for the amount of this balance. Upon the trial defendants objected to the introduction of any evidence under the complaint, because it does not state facts sufficient to constitute a cause of action, which objection was sustained, and this appeal was taken from the ruling of the court on that question.
These facts present two propositions of law for our consideration:
First. Can a joint mechanic’s lien be enforced against two separate properties owned by different individuals, based upon a sin
Second. Can the statement required by the mechanic’s lien law be verified by an agent of the lien claimant? . Section 5470, Comp. Laws, says: “Every subcontractor wishing to avail himself of the benefits of this chapter shall, within sixty days after the material shall have been furnished or labor performed, file with the clerk of the district court of the county or judicial subdivision in which the building, erection or other improvement to be charged with the lien is situated a just and true account of the demand due him, after allowing all credits, and containing a correct description of the property to be charged with said lien, and verified by his affidavit.” The affidavit attached to the claim in the case at bar was made by the bookkeeper and agent of the lien claimant. The contention of the respondent is that the statements should have been verified by the owner of material furnished. A literal construction of the statute will require that none but the subcontractor who wishes to avail himself of the lien can verify the account; the statute saying that the account must be “verified by his affidavit.” Such a strict construction would in many instances render the lien law useless and nugatory. No corporation could make the verification, nor could large lumber dealers and lumber men having numerous and extended places of business at various points along railroads, or persons otherwise doing business through agents. Many of the transactions and contracts made would not be within the knowledge of the actual owner of the materials furnished. Neither would it be contended that it would be a reasonable construction of the statute that the verification for a partnership consisting of several persons should be made by all the members of it. A verification by any one of them would be sufficient. So it would seem that a verification by an agent, who had positive knowledge of the facts stated in the ac