149 N.W. 955 | N.D. | 1914
This is a continuation of the controversy treated in Meyer Lumber Co. v. Trygstad, 22 N. D. 558, 134 N. W. 714, where a statement of the facts may be found. After the said decision, holding void the lien filed against both lots and buildings thereon, the
The defendant and respondent in his brief states that there are four propositions raised by the demurrer and the complaint: first, that the plaintiff has by a former action elected its remedy, and is barred from maintaining this action; second, that the notice of lien is not sufficient; and, third, where building materials entering into the construction of two buildings owned by different parties are used indiscriminately in each of said buildings by a subcontractor under separate contracts with the owners, and it is impossible for the materialman to designate the particular items entering into the construction of the said buildings, and the materialman furnishes such material under a general contract with the subcontractor, no lien can be had, and an apportionment cannot be had so as to give the materialman a lien on one building for an appropriate share of the materials going into both buildings; and, fourth, where lienahle and unlienable articles are indiscriminately intermingled in lien account, and the lienable items cannot be segregated, no lien can be had.
(1) We do not believe the filing of a void lien amounts to such an election of remedies as precludes the filing of a valid lien thereafter. At 15 Cyc. 262, it is said: “A person who prosecutes an action or suit based upon a remedial right which he erroneously supposes he has, and is defeated because of the error, has not made a conclusive election, and is not precluded from prosecuting an action or suit based upon an inconsistent remedial right.” Many cases are cited in support of the text, both in the original Cyc. and in the annotations. A case particularly in point is Sullivan v. Ross, 113 Mich. 311, 71 N. W. 634, 76 N. W. 309, Judge Moore giving a very lucid exposition of the equities involved.
(2) Taking up the second point raised by the demurrer, we believe
The complaint therefore stated a cause of action, and the demurrer was improperly sustained. Judgment reversed.