44 Wash. 68 | Wash. | 1906
This is an action to foreclose a lien for material alleged to have been used in the construction of a certain building. The material consisted of building hardware and paints, and it is alleged that the plaintiff furnished the same at the special instance and request of the defendant Sly, to be used in the construction of a building on lot 9, block 33, of Second Sinto Addition to Spokane Falls, now Spokane. It is also alleged that the defendants A. M. Brandt and wife are the owners and reputed owners of the lot, and that said Sly was the contractor in charge of the construction of the building. The usual averments concerning .the filing of a lien notice are made, and a balance of $115.85 is claimed as due and unpaid. The complaint also contains certain allegations concerning a mortgage upon said property said to have been executed by said Brandt and wife to the Netherlands American Mortgage Bank, to secure the sum of $3,250, which it is charged was fraudulently made. Said Brandt and wife answered the complaint, denying the material allegations thereof and affirmatively alleging that the goods were sold to said Sly upon general account with the intention of holding him personally, without reference to any particular property upon which the same was to be used and without any intention of claiming a lien therefor. Also, that before the commencement of suit, said Sly had fully paid for all materials mentioned in the complaint. It is conceded that the said bank also appeared and answered, but the answer was not brought up with the record and it does not appear what issue was made thereby. The cause was tried by the court and resulted in a judgment dismissing the action and awarding costs to Brandt and wife and said bank. The plaintiff has appealed.
It is assigned that the court erred in refusing the admission in evidence of appellant’s daybooks, containing the items involved in the suit, and in holding that appellant’s memorandum and delivery slips were books of original entry and the best evidence. Appellant was, however, able to produce,
Some technical reasons are urged by respondents against the enforcement of the lien, by way of informality in the notice of lien, variance as to ownership, and the inclusion of nonlienable articles. We shall, however, pass over these and discuss what we consider more serious matters affecting the essence of appellant’s claim for a lien. We think the proof is not satisfactory as to the actual delivery of the material at the property in question, and that it was actually used thereon. The testimony of the president of the appellant corporation upon that subject was that he knew nothing more about the delivery than that some of the goods were given to appellant’s deliveryman with slips specifying the property in question as the place of delivery. The deliveryman did not testify. The larger part of the material was delivered to one Fuller by direction of Sly. Fuller was a subcontractor of Sly’s for painting. Sly was at the time engaged in constructing a number of other houses to which appellant was sending materials on his account. Fuller did not testify, so that it does not appear what painting material went to his building. We think the evidence upon this subject is too indefinite and uncertain to charge the property with a lien.
Moreover the goods sold for the different houses were all charged to Sly in one general account. There were here and there extending through the account certain notations indicating-that materials were delivered to different houses, and
It is assigned that the court erred in dismissing the complaint against the Netherlands American Mortgage Bank. No evidence was introduced in support of the allegations of the complaint against the bank, and its answer was not brought up with the record. There is, therefore, nothing here for our consideration upon that subject.
The judgment is affirmed.
Mount, C. J., Fullerton, Root, Crow, and Dunbar, JJ., concur.