26 Colo. App. 155 | Colo. Ct. App. | 1914
delivered the opinion oT the court.
This action was brought by The McFarlane Manufacturing Company to establish and foreclose a mechanic’s lien upon
The property on which the lien is claimed is a group of lode mining claims and a mil.lsite in Dolores county, owned by the defendant. The lien is claimed on account of c'ertain materials alleged to have been sold and delivered by the plaintiff to- the Smuggier-Almont Company, to be used, and used, in improving the mining claims and millsite. The cross-complaint, hereinafter called the complaint, contains two counts or Causes of action. The first Count predicates the right to’ a lien ag'ainst the property of the defendant upon the theory and allegation that said company expressly authorized and directed the Smug'gler-Almont Company to make the improvements. The second count is identical with the first, except that it predicates the right to a lien upon the theory and allegation that the defendant, the owner of the property, had full knowledg-e of the furnishing- of the materials, but failed within five days thereafter to give notice in any manner -that its interest in the premises should not be subjected to a lien therefor. The defendant’s reply put in issue all material allegations of the Complaint, except its ownership of the mining-property and the recording of the lien statement, and certain other purely formal allegations, which were admitted.
The court overruled defendant’s motion for non-suit mad’e upon the ground tliat the Complaint did not state facts sufficient to' constitute a cause of action against it, and that the evidence was insufficient to sustain the judgment, and entered a decree establishing -the lien and ordering its foreclosure.
Conceding, but not deciding, that the complaint stated a cause of action, we think the evidence wholly insufficient to support the decree.
1. There is not a scintilla of evidence to show that the plaintiff, being a materialman, at the time it furnished the materials and supplies, knew that the same, or any thereof,
“* * * Materialmen * * *' furnishing materials to be used in the construction, alteration, addition to or repair of any building * * * or any other structure or improvement upon land * * * shall have a lien upon the property upon which they have * * * furnished materials,” etc.
It seems to be quite uniformly held that under this and similar statutes, it is necessary to prove that at the time the material was furnished there was a mutual understanding between the materialman and the contractor that'the material was furnished tO' be used in the Construction of a particular building or the improvement of certain property; or, at least, that there was shell understanding upon the part of the materialman, and in the absence of such proof, the lien cannot be sustained. — Tabor-Pierce Lumber Co. v. International Trust Co., 19 Colo. App. 108, 75 Pac. 150; Roebling v. Irrigation Co., 99 Cal. 488, 34 Pac. 80; Rice v. Cassells, 48 Colo. 73, 108 Pac. 1001; Salzer Lumber Co. v. Lindenmeier, 54 Colo. 491, 496, 131 Pac. 442; Johnson v. Simmons, 123 Ala. 564, 26 South 650; Chapin v. Papier Works, 30 Conn. 461, 79 Am. Dec. 263; Colorado Iron Works v. Riekenberg, 4 Idaho 705, 43 Pac. 681; Wendt v. Martin, 89 Ill. 139.
“Deeds, bonds and agreements in writing, for the conveying or incumbering of real estate, or any interest therein, shall be deemed from the time of being filed for record, notice to subsequent purchasers or incumbrancers, though not acknowledged or proven according to law, but neither the same, nor the record thereof, shall be read as evidence, unless subsequently acknowledged or proved according to law, or unless their execution be otherwise proved in the manner required by the rules of evidence applicable to such writings, so as to supply the defects of such acknowledgment or proof.”
—Section 696 Rev. Stats. 1908, 838 M. A. S. 1912.
The evidence offered should have been rejected. Without it, there is no proof of contractual relations between the defendant and the Smuggler-Almont Company upon which to- predicate an agency in the latter company for the former that would support a lien upon defendant’s property for goods furnished by the plaintiff at the instance and request of the Smuggler-Almont Company, and for that reason, if for no other, there is a failure of proof to support the first cause of action. The materials are not shown to have been furnished at the instance of the owner of the property or its ag‘ent. But if the execution of the bond and lease had! been duly proved, so as to be considered in evidence, we think that fact would not affect our conclusion as to the first cause'of action. An examination of the instrument discloses that it is an ordinary mining lease, with an option to purchase, providing for development work in general, but with no pro
3. The defendant in error contends that the lien can be sustained under the second c'ause of action. The statute upon which this cause of action is predicated has been construed by this court in Fisher v. McPhee & McGinnity Co., supra. It provides that improvements made upon land with the knowledge of the owner shall be held to have been made at his instance and request, to the extent that the land shall ¡be subject to- a lien for such improvement, unless the owner shall, within Uve days after he shall obtain wtice of the improvement, give notice that his interest shall not be subjected to a lien for the same, in the manner provided in said statute. It is further provided that the provisions of said section shall not apply to any owner who- shall have contracted for such improvement. — Session laws 1899, page 261, section 5, 4029 R. S. 'o8, 4584 M. A. S. 1912. There is no allegation in the second cause of action that the defendant had knowledge or notice of the making of the improvements on its property, or that the materials furnished by the plaintiff were used in the construction, alteration or repair of any buildings, structures or other improvements on its property. The complaint alleges that “at the time o-f furnishing said hardware, mill and mine supplies, defendant had full knowledge and notice thereof.” This allegation is defective, but, conceding.it to be a sufficient' allegation to' bring the plaintiff and defendant within the terms of that section of the statute, no testimony was offered to show that defendant had such knowledge or notice, and nothing from which such notic'e can be inferred. Furthermore, we are of the opinion that in order to sustain a lien under this section in behalf of a materialman, it must be shown that the materials were furnished to be used in the building or other structure or improvement upon the property sought to be charged with the lien, and with the knowledge or understanding that they were to be so used, and credit thereby
Reversed.