Martin v. Simmons

11 Colo. 411 | Colo. | 1888

Stallcup, C.

By our mechanic’s lien act it is provided that whoever shall do work or furnish materials by contract, express or implied, with the owner of any land, for buildings or improvements thereon, shall have a lien thereon for the amount and value of the work so done and the materials so furnished. From the evidence it is shown that the materials were sold and furnished to and upon the credit of the said Simmons, for a structure erected upon his lots 1 and 4, block 33, Highland, in the town of Highland, in said county; that the amount thereof was $207.81; that it remained wholly unpaid; and that the said Simmons was liable upon his promise therefor. It follows that the said plaintiff, Martin, was entitled to a lien therefor upon the said lots, provided such right had been asserted according to the provisions of said mechanic’s lien act. The said act provides for a statement containing a notice of intention to hold and claim a lien, with a description of the premises to be charged therewith, and an abstract of indebtedness, showing the whole amount of the debt and credit and balance due; that such statement be filed for record within sixty days after the time when the last work shall have been done, or the last materials shall have been furnished, and, in cases of subcontracts, in forty days; also that such lien, so asserted, shall relate back to the time of the commencement of the work or furnishing of the materials. It is argued here that there was an insufficient description, in the lien notice, of the premises to be charged therewith. The premises were described in the lien notice as lots 1 and 4, in block 33, Highland subdivision; the proper description thereof being lots 1 and 4, in block 33, Highland, in the town of Highland. It is apparent that the lien claimant, Martin, supposed that Highland was a subdivision of Denver, instead of a distinct town. No reason appears why this error should defeat his lien, at least as to the owner, Simmons. If there is enough in the description in the lien notice to enable a party familiar with the locality to identify th.e premises intended'to be described with reasonable certainty, to the exclusion of others, it is sufficient. Phil. Mech. Liens, §§ 319, 380. It is shown that these two lots were the only lots in the county owned by Simmons, so it seems to be fairly deducible from the evidence that there would be no difficulty in identifying the same with the description of the lien notice. The court also erred in denying appellant’s motion for leave to amend his complaint.

The judgment should be reversed and the cause remanded for a new trial.

De France, 0., concurs. Rising, C., dissents.

Per Curiam.

For the reasons assigned in the foregoing opinion the judgment is reversed and the cause remanded.

Reversed.