152 P.2d 690 | Okla. | 1944
D.M. Lewis appeals to this court from a judgment of the district court of Grady county in favor of Henry Red. Red brought the action seeking to foreclose a lien for material furnished and labor done on a house owned by Lewis. Lewis denied the allegations Red made, and filed a cross-petition wherein he outlined the relations between them as principal and agent and alleged that Red had collected more rent and insurance money than he had expended on the property, and sought judgment for the difference.
The first contention presented is that the trial court erred in refusing to sustain Lewis' motion to require Red to make his petition more definite and certain. These motions are addressed to the discretion of the trial judge and rulings thereon are not reversed on appeal except upon showing of an abuse of discretion. Oklahoma City v. Stewart,
Lewis' other contentions involve the weight of the evidence in the light of the law applicable, and will be discussed together.
Red's allegation and proof that his original or first contract with Lewis was oral is legally sufficient. T. J. Stewart Lumber Co. v. Derry, *433
Certain of those items such as taxes and insurance and labor for the care of the house for a three-year period are not lienable items under our statute, as they do not come within the meaning of labor and material for the purpose mentioned in the statute.
Several of the items for labor and material are such as properly form the basis for a mechanic's and materialman's lien when the statute, supra, is complied with in all respects. However, they do not entitle Red to such a lien in this case for two reasons. While they may be said to have been done under one contract, that is the contract whereby Red took charge of the property as agent for Lewis, it is not the type of contract that is the basis for such a lien under our statutes. The overall picture is one of a running account lasting over a period of years between a principal and his agent. The facts do not present the situation contemplated by the general rules of law or our statutes relating to such liens in which material is furnished and labor is done for "the erection, alteration or repair of any building" under a contract with the owner. The situation more nearly resembles that in Fitzpatrick v. Ernst,
Also, the copy of the lien statement appearing in the record indicates it was prepared April 23, 1941, but it does not bear a filing date. If this date of preparation is correct, it is obvious that it could not have been filed earlier than that date. The most recent items appearing in the lien statement that could support a lien bear the date of December 2, 1940, and earlier. Thus, if the lien statement was filed as early *434 as April 23, 1941, it was still more than four months after the last item appearing in the statement, and is too late.
Red's evidence does sufficiently establish the debt allowed to him by the court in the sum of $214.12 with interest. This part of the action is not subject to the statute of limitations because (1) Lewis did not plead that defense, and (2) Lewis counter-claimed against Red. 12 O. S. 1941 § 273.
The judgment appealed from is affirmed insofar as the money judgment and interest and costs are concerned, but is reversed insofar as it allows Red a mechanic's and materialman's lien on the property involved and an attorney's fee, and is remanded for further proceedings.
CORN, C.J., GIBSON, V.C.J., and OSBORN, WELCH, HURST, DAVISON, and ARNOLD, JJ., concur.