73 W. Va. 527 | W. Va. | 1914
Lead Opinion
The bill filed in this cause against the owner of a lot of land and the contractor for the erection of a building thereon, to enforce an alleged mechanics lien, was dismissed upon the theory of a failure of prpof to establish the lien. The appellant insists here upon the sufficiency of the proof, and also upon its right to relief upon the facts stated in the bill, even though the proof offered to sustain the lien should be held insufficient.
The plaintiff began its negotiations- for the work as a subcontractor, .but they seem to have extended to the owner of the building, wherefore there is a claim in argument of a
For the appellant it is claimed the answer does not deny the allegation that the account was verified; but there is a general denial of the filing of a sufficient 'account and claim and thle acquisition of a mechanics lien, and this is followed by a denial in general terms of every allegation of the bill not admitted to be true. In the absence of a specific exception, pointing out the particular allegations as to which the plaintiff insists upon an admission or denial, such a general denial suffices. Sandusky v. Farris, 49 W. Va., 150, 166; Richards v. Donahoo, 16 W. Va., 685. No such exception was filed.
Some sort of a paper was filed as and for a mechanics lien upon the property proceeded against and for the demand set up in the bill. Cole, president of the plaintiff corporation, and French, its attorney at the time, both swear it was prepared for the purpose. Cole swears he personally served a copy of it upon McGuffin-, secretary and treasurer of the defendant corporation. The transcript from the clerk’s office proves it was filed, and the clerk declares his personal recollection of the filing thereof. Cole, French and the clerk all swear it could not be found in the clerk’s office a short time after it had been partially transcribed upon a record book in the office. The clerk says he searched the file in which it should have been found and other places in the office without avail. French says he and the clerk made thorough search- for it. So its loss has been fully proven.
While no' witness says in terms the claim was verified or had
The rule requiring a party to produce decisive proof in his possession, when the evidence adduced leaves an issue in doubt, does not apply. Here there was not evidence pro and con, evidence opposing evidence. What there is all tends in the same direction and favors the plaintiff. The rule applies only when a prima facie case has been made and a doubt has been cast upon it by rebuttal evidence or otherwise. Stout v. Sands, 56 W. Va. 663.
Sometimes the conduct of the parties in the course of litigation is treated as evidence, as the rule just referred to shows, but the conduct it contemplates is not the only kind to which the courts accord the force of evidence. As Judge Beannon observed in some case, the style of which is not now recalled, their conduct may amount to a concessum of an issuable and material fact. The first one of a series of bonds not having been produced in a suit in which it obviously had a place, if not paid1, the court said, “It may be regarded as a concessum that it has been paid in some way, for the purposes of this case”. Barbour v. Duncanson, 77 Va., 83.
The conduct of the defendant here purports an admission of the verification of the claim, if one was filed, or an oversight in the examination of the witnesses, which amounts to about the same thing, since, in that ease, the issue as to verification was not in mind at all during the process of examination and cross-examination. The witnesses having said a claim in conformity with the statute had been filed, evidence necessarily implying verification, the defendant did1 not ask whether the paper was sworn to. Obviously, therefore, its attorneys either did not care to enter upon an inquiry as to that particular or inadvertently omitted to do so.
For the reasons here stated, the decree complained of is erroneous and will be reversed, and a decree will be entered here, declaring a lien in favor of the plaintiff for the unpaid
Reversed and Remanded.
Dissenting Opinion
(dissenting):
In my humble judgment the decision of the majority is wrong. It puts on a defendant, though the plaintiff neglects or is unable to prove the affirmative, the burden of proving the negative of that which by all known rules the plaintiff must first affirmatively prove. In this case the direct issue was whether or not plaintiff had filed in the clerk’s office a valid mechanic’s lien and served a copy of the same on the owner. Plaintiff established the loss of the paper but did not prove all its contents. It was the bounden duty of plaintiff to prove that the lien filed! was- a valid one under our law. Code 1906, ch. 75, sec. 3. Such a lien is not valid unless verified by affidavit as required by the law. Unless a verification is proved, a lien is not proved. One seeking to enforce a mechanic’s lien must show that he has at least substantially complied with the law in affixing the lien on the property of the owner. His right thus to subject one person’s property for another’s debt is distinctly a statutory right. He must therefore show compliance with the statute before he at all hais the right. He must therefore show compliance with the statute before he at all has the right. “To render a mechanics lien valid, it must appear upon its face that all the provisions of the statute necessary to its creation have been substantially complied with, and where by proper pleadings a fact material and necessary to its validity is put in issue, the burden is upon the one asserting the lien to establish such fact by proof.” Blowpipe Co. v. Spencer, 61 W. Va. 191. “Such liens are purely creatures of the statute, and every necessary ¡step prescribed in order to perfect such liens must be pursued in order to make them a charge against the property of the owner.” Wees v. Elbon, 61 W. Va. 380. That verification is a necessary step, no one will deny. That plaintiff wholly failed to prove that there was a verification of the alleged lien soukht to be enforced in this ease, can not be controverted by a proper view of the record. Not a witness says the lost paper was verified. Three witnesses who would naturally have known whether or not it was verified
Even if defendant did in some negotiation take into consideration the amount in jeojardy by reason of the claim of this alleged lien, that is no admission that the lien is valid. Nor can a material requisite of the lien be proved by any implication arising from such caution on the part of defendant. Such implication can not properly atone for plaintiff’s failure to prove that which the law enjoin® on him to prove.