131 Minn. 31 | Minn. | 1915
In 1913 defendant Hedden as contractor, as the court found, erected two houses on Lyndale avenue, in Minneapolis, numbered respectively 4540 and 4544. He made a contract with plaintiff to furnish the mill work and the same was furnished accordingly. The first item was furnished February 7,1913. A balance in substantially the amount claimed in the complaint in this action is unquestionably due for the mill work furnished for No. 4540, and a mechanic’s lien is claimed on that property therefor. The only question is as to the last item of $1.25, and from
The finding of the trial court must be sustained. Taking the whole transaction together, it was proper to hold that the drain board was furnished to be used in the construction of the house at No. 4540. Difficulty arises only from two facts; the item was never in fact delivered at No. 4540 and was never in fact incorporated in the building. Neither fact is fatal to the lien. This is well settled by previous decisions of this court. In Hickey v. Collom, 47 Minn. 565, 50 N. W. 918, material furnished on the lot to a vendee under a contract requiring the construction of a building, but not used, was held lienable upon the interest of the vendor. In Burns v. Sewell, 48 Minn. 425, 51 N. W. 224, material delivered to the contractor on the lot, but taken by him and used elsewhere, was held lienable. In Combination Steel & Iron Co. v. St. Paul City Ry. Co. 52 Minn. 203, 53 N. W. 1144, steel rails furnished by plaintiff to a contractor to be used, but not used in the construction, were held lienable. In John Paul Lumber Co. v. Hormel, 61 Minn. 303, 63 N. W. 718, material sold by plaintiff at his place of business to be used in a building under construction, and taken away by the owner, was held lienable, though in fact taken and used elsewhere. In Berger v. Turnblad, 98 Minn. 163, 107 N. W. 543, labor performed in the shop of the contractor upon material which the contractor refused to furnish was held lienable. In Thompson-McDonald Lumber Co. v. Morawetz, 127 Minn. 277, 149 N. W. 300, material delivered to a common carrier for shipment by rail to a contractor, to be used in the construction of a building, but not in fact taken there or used there, was held lienable. Brown, C. J., said: “If the material in a given case be delivered into the physical possession of the owner, it seems clear that no court would hold that his failure to deliver the same upon the premises would affect the rights of the materialman. We can conceive of no valid reason for applying a different rule where the delivery is to the contractor, the agent and representative of the owner, and for whose acts the owner is responsible to the extent at
Under the rule of these cases it is manifest that plaintiff has a lien as against the owner of the premises. The fact that in this case the material was delivered upon a lot other than the lot upon which is situated the building upon which a lien is asked, is a difference between this case and the eases cited, but it is not a difference of importance.
The main contention of appellant- is that a different rule should be applied to it because it is a mortgage. The mortgage was given and assigned to defendant during the construction of the building and at a time when plaintiff had an unquestioned right to a lien. We can see no ground for distinction between such a mortgagee and an owner. It is said that appellant is a bona fide encumbrancer. Doubtless this is true, but that does not alter the situation. If the mortgage had been given before the improvement was under way, as in Wentworth v. Tubbs, 53 Minn. 388, 55 N W. 543, or if the mortgage had been taken or money paid or rights lost in reliance upon some act or conduct of plaintiff, a different question would be presented. JBut no such facts exist. This is the simple case of a mortgage taken during the open and notorious construction of the building. Such an encumbrancer takes his rights subject to the existence of mechanics’ liens for the construction of the building, which are liens upon the interest of the owner, and which are acquired and perfected in the usual manner.
Order affirmed.