16 Mont. 65 | Mont. | 1895
Lead Opinion
The evidence upon which the findings were made is not before this court. There is no contention that the evidence did not warrant the findings. The appellants contend that, under the findings of the jury, the court erred in rendering judgment for the plaintiff in the sum of five hundred and eighty-two dollars and seventy-seven cents, and for one hundred dollars attorney’s fee, with costs of suit. It is contended by appellants that only one item of the materials for which alien is claimed, amounting to twenty-four cents, was sold and delivered by plaintiff within 46 days before the filing of the notice of lien, and that all the other materials in suit were sold and delivered under separate orders or contracts, and were all delivered more than 45 days before filing the lien, and that such several orders did not constitute one continuing contract. The appellants contend that the findings of the jury numbered 2, 5, 7 and 8 establish the claim that the materials were furnished under separate orders or contracts. We think finding No. 2, while it is to the effect that O’Brien might furnish the materials himself, or procure them elsewhere than of plaintiff, does not in any wise tend to show that what materials he did procure from plaintiff were not furnished under a continuing-contract or understanding. Finding No. 5 is to the effect that each day’s orders for material were due on delivery. We think that this merely means that there was no specific agreement for time. This does not preclude the presumption that time or credit was understood to be intended by the parties from the nature of the contract, and the custom of dealing between the parties. Finding No. 7 is to the effect that there was no specific agreement between O’Brien and plaintiff as to
Appellants contend that findings Nos. 6 and 9 were conclusions of law, and should not have been submitted to the jury. We do not think so. They were questions of fact, and were properly submitted. (See Phil. Mech. Liens, § 326, and authorities cited; Jones on Liens, § 1449, and authorities cited; Turner v. Wentworth, 119 Mass. 459.) Some of the authorities hold it to be error to refuse to submit the question to the jury whether the materials in such cases were delivered under an entire contract or under separate ones. (Phillip on Mech. Liens, § 326.
We think the proper rule to be, and the one supported by ample authority, that when all the items in the account relate to one transaction, and is between the same parties, it constitutes a, continuous account, regardless of different times of delivery, and dates from the day of the last item. (See Phillip on Mech. Liens, §§ 225, 226; Lamb v. Hanneman, 40 Iowa 41; Kearney v. Wurdeman, 33 Mo. App. 447; Jones on Liens, § 1435.)
When it is inferable from the evidence that the materials
We are aware that the authorities hold that, where materials are delivered under separate and distinct contracts, the lien should be filed within the time prescribed by the statute after the delivery under each of such contracts. But when the question has been submitted to a jury, and they find that the materials were delivered under one entire contract, and not under separate ones, and the court adopts such finding, and renders judgment in accordance therewith, we must presume that such question was properly submitted, that there was sufficient evidence to support such finding, and that the judgment is supported thereby.
The appellants contend that judgment should not have been rendered in any event for one hundred dollars as attorney’s fee, because he says the law of the state which gives to the court power to enter judgment for attorney’s fees, as costs, in cases like the one at bar, is unconstitutional. This question was ably presented to this court in Wortman v. Kleinschmidt, 12 Mont. 316, upon the same authorities now cited by counsel in their briefs. The majority of the court, in an able and learned opinion by Mr. Chief J ustice Blake, held the law in question to be constitutional. The authorities cited are not uniform or harmonious. There is a conflict between able authorities on the question. In addition to Wortman v. Kleinschmidt, supra, see Gulf etc., Railroad Co. v. Ellis (Tex. Sup.) 18 S. W. 723.
Without expressing any opinion as to how the court would view the question were it a new one in this jurisdiction, we are of opinion that the question should be regarded as stare ■decisis. The judgment is affirmed.
Affirmed.
Concurrence Opinion
(concurring except as to the matter of attorney’ s fees.) — I concur in the judgment pronounced in this case in all respects, except as to the' allowance of attorney’s fees.
Having presided at the trial of this case as judge of the district court, I take no part in the foregoing decision, except to concur in the conclusion of the Chief Justice, affirming the case of Wortman v. Kleinschmidt, 12 Mont. 330, sustaining the constitutionality of the statute taxing a reasonable attorney’s fee as costs to the defendant against whose property a lien is filed, where judgment is rendered for the plaintiff in foreclosure.
