George H. Rice & Co. v. Brown, 1 Kan. App. 646

George H. Rice & Co. v. Brown

1 Kan. App. 646 | Kan. Ct. App. | 1895

The opinion of the court was delivered by

Johnson, P. J. :

There is no dispute as to the facts found in this case ; each party was satisfied with the facts found by the jury and the additional facts found by the court. It becomes a question of law as to *652■whether the plaintiffs below were entitled to a lien upon the real estate for which they had furnished material as subcontractors to erect improvements thereon. Plaintiffs claim a lien on the premises under §§ 630 and 631, article 27, chapter 80, Compiled Laws of 1885 :

“ Sec. 630. Any mechanic or other person who shall, under contract with the owner of any tract or piece of land, his agent or trustee, or under contract with the husband or wife of such owner, perform labor or furnish material for erecting, altering or repairing any building or the appurtenances of any building, or any erection or improvement, or shall furnish or perform labor in putting up any fixtures or machinery in or attachment to any such building or improvement, . . . or shall perform labor or furnish material for erecting, altering or repairing any fence on any tract or piece of land, shall have a lien upon the whole piece or tract of land, the buildings and appurtenances in the manner herein provided, for the amount due to him for such labor or material, fixtures or machinery.

“Sec. 631. Any person who shall furnish any such material or perform such labor under a subcontract with the contractor, wishing to avail himself of the act, shall file a statement of the amount due him from such contractor for the labor performed or the material, fixtures or machinery furnished, and a description of the property upon [to] which the same were done [applied] within 60 days after the completion of the buildings, improvements or repairs or furnishing or putting up of fixtures or machinery, or the performance of such labor, in a book kept by the clerk of the district court for that purpose, and furnish a copy thereof to the owner or agent of the premises, which book shall be ruled off into separate columns with heads as follows: When filed, name of contractor, name of claimant, amount claimed, and description of property, and the proper entry shall be made under each of such heads.”

The legislature has regarded it just and equitable that all those who, by contract with the owner of any *653tract of land, Ms agent or trustee, or in pursuance of contracts with, him for that purpose, contribute either labor or material to increase the value of his property, should have a lien upon it for the payment of their respective claims for such labor or materials, and has prescribed the manner of securing and enforcing the same. At common law no lien existed in favor of mechanics or material men. The right to a lien for labor or material in the improvement of real property is one conferred by statute alone, and, in order to obtain such lien, the party must pursue his remedy in strict conformity with the mode, in the manner and within the time prescribed by the statute. The statute requires that, where the contractor claims a lien, he shall file in the office of the clerk of the district court in the county in which the land is situated a statement, verified by affidavit, such statement to be filed within four months after the completion of the building, improvement or repairs, or the furnishing or putting up of fixtures or machinery, or the furnishing of material or labor for the building. A person who shall furnish any material or perform such labor under a subcontract with the contractor, must file a like statement of Ms claim against the contractor within 60 days after the completion of the building, improvement, or repairs, or the furnishing of material.

The jury found that plaintiffs furnished lumber and other material to the contractor, Moore, under a contract' for the purpose of being used in the buildingof defendant Brown’s house, on Avenue “A,” east, in the city of Hutchinson, to the amount of. $1,366 ; that the material so furnished was actually used in the construction of such house ; that Brown moved into the house December 9, 1887, and settled with the painters *654for painting the house about the middle of December ; that Brown did not finish the house according to plans and specifications — that he changed them. The jury also found that the house was not fully completed until March, 1888 ; that the work done after December 9, 1887, was not a part of the work contracted to be done by Moore with Brown ; that Brown paid Moore prior to February 19, 1888, the sum of $1,600; that the plaintiff’s lien was filed January 17, 1888 ; that Moore paid out for labor and material all of the $1,600 paid him by Brown on the building; that all the plumbing unfinished on December 19, 1887, was the connection between the street main and the water-pipe at the curb line; that there was no work done included in Moore’s contract with Brown on the premises between the 19th of December, 1887, and the 8th of March, 1888 ; that the work in the construction of the house, except grading and plumbing from the curb line, was substantially completed in December, 1887; that Moore claimed that all of the work he contracted with Brown to do was completed in December, 1887; that none of the material furnished by plaintiffs was used in any of the work that was done on the premises subsequent to December, 1887.

The defendant insists that the contract with Moore to build the house, grade the grounds around the building and connect the plumbing to the main in the center of the street was one entire contract, and that no lien could be filed until this was all completed. Brown took possession of the house and moved into it in December, 1887, Moore claiming to have completed it according to his contract, and the same being completed substantially, except grading and putting in piping from the curb line to the main in the center of *655the street. All work was suspended about the premises for some months, and during such suspension plaintiffs’ lien was filed. The contractor did not at any time thereafter do any work upon the building or furnish any further material, but treated it as complete, and the owner was apparently satisfied with the building in that condition. We think, therefore, that the parties furnishing such material had a right to regard the building as completed and file the statement for a lien thereon, and that such statement, being filed in strict accordance with the law, entitled them to a lien upon the premises for the value of their material, and gave them a right to enforce the same by suit of foreclosure. The statute giving mechanics and persons furnishing material a lien on the' premises where the building is situated provides that no suit shall be prosecuted to enforce the same until the expiration of 60 days after the completion of the building. The bringing of the suit on January 19, 1888, was premature, and the same was for that reason dismissed in December, 1888, and -the present suit was commenced within one year after the dismissal of the first suit.

The defendant insists that this suit is barred by the statute of limitations. We think the case of Seaton v. Hixon, 35 Kas. 663, is decisive of this question. Valentine, J., speaking for the court, says :

“Is the present action barred by the one-year limitation prescribed by § 4 of the mechanic’s lien law? We think not. That limitation requires that an action to foreclose the lien shall be commenced within one year after the building has been completed; but it also provides that ‘ the practice, pleadings and proceedings in such action shall be in comformity with the rules prescribed by the code of civil procedure, so far as the same are applicable.’ (Oomp. Laws of 1879, *656¶ 4171.) And § 23 of the code of civil procedure, reads as follows : ‘ Sec. 23. If any action be commenced in due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the' plaintiff, or if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.”

We think this action was not barred by the statute of limitations. The court should have rendered judgment upon the facts as found in favor of the plaintiffs for the foreclosure of their lien, together with interest and costs. The judgment of the district court is reversed, and the case remanded with direction to enter up judgment for the plaintiffs in accordance with this opinion.

All the Judges concurring.