9 N.M. 512 | N.M. | 1899
This cause comes into -this court on appeal from the district court of Bernalillo county. This was an action to. enforce or foreclose a mechanic’s lien on certain property in the city of Albuquerque. A brief statement of this case is as follows: On or about December 23, 1891, one
George IT. Miles was engaged in conducting a hotel business in a building owned by the “Armijo heirs,” and situate in said city of Albuquerque. Said Miles was a tenant. Said hotel building was situate on lots numbered 1, 2, 3, 4 and 5 of block 17, in the city of Albuquerque. On or about said twenty-third day of December, 1891, said Miles entered into a com tract with the Mountain Electric Company, a Colorado corporation, for the purchase and delivery at Albuquerque of an electric light plant, to be paid for when said plant was installed and tested. Said company fulfilled their part of the contract by the delivery of the plant proper and necessary attachments for the same. Said Electric Light ‘Plant was installed on the lots named above. Said Miles failed to pay for the purchase at the time agreed, and an extension of time w,as granted by the company to said Miles; finally a promissory note for the amount due .was taken by the company, from said Miles. Said company perfected and filed in the proper office a mechanics’ lien on the property heretofore described for the amount of the debt due it; suit to enforce this lien was brought in the, district court of Bernalillo county, and the court decided said cause against the complainant herein, and to reverse said judgment appeal is prosecuted in this court.
In view of the fact that this case has been so vigorously contested, and such elaborate brief filed by both counsel, we have given a great deal of time to the investigation of the questions raised in this case. In the examination and consideration of this case we have considered all letters' and telegrams mentioned in the record and contended for by counsel for defendants below as in evidence, and treated tbe record as full and complete in this respect. Having considered this case in the light of all the evidence disclosed by the record, as well as the telegrams about which there was some contention, the contention of counsel for defendants under the second point of this brief need not be considered in this opinion.
The sixth contention, of counsel in his brief for appellees seems to us untenable, the contention being that'“the fact that the dynamo was actually used to furnish light for the Armijo Hotel adds nothing to the appellant’s rights.” Wé are satisfied from the evidence, including all telegrams and letters sent during the time of this trade, beyond question that the plaintiff and defendant George H. Miles both knew that an electric lighting plant was being bought for the Armijo Hotel. The mechanics’ lien law does not create liens. It is simply enabling in its nature, and certain persons therein described may by their own acts perfect a lien in their own behalf, pursuant to the provisions of the la.w. The fact whether the dynamo and fixtures in question were or were not used to repair and improve the Armijo Hotel is one of the vital facts in this case, without the existence of which the whole case must fall. The fact that the material.furnished was to be used for the purpose for which it was used is sufficiently proved by oral evidence of witnesses, telegrams and letters sent and received by the parties to the contract.
The seventh contention in brief of counsel for appellees “That there is no evidence of a contract such as is necessary to support appellant’s lien,” has, in fact, practically been settled in a former part of this opinion. The evidence in the case clearly convinces us that there was such a contract between the Mountain Electric Company and George H. Miles as would entitle the plaintiff below to have its statutory mechanics’ lien.
The eighth contention of counsel for appellees that “There is no support in the evidence for the master’s finding that this plant was furnished and erected with the knowledge and consent of appellees,” can not be maintained, because three witnesses testify to the fact that appellees were about and in the building while the repairs were being made, and one witness testifies that appellees were specially shown the improvements throughout the hotel by a Mr. Chaves. They saw these valuable and costly improvements being made and uttered not a word nor indicated to anyone to stop, or that they would not consent or allow themselves to be made responsible. “Having remained silent when they should have spoken, now when they would speak they shall not speak.”
A distinction, however, is made where a promissory note is given in “payment and there is affirmative proof before the court showing that such note was given in payment. In the case at bar no evidence of that kind appears on the record. In volume 15 of the Encyclopedia of Law, page 105, we find, this doctrine laid down, to wit: “The acceptance of a promissory note is not a waiver of a mechanic’s lien, although the note may have been discounted at the bank, if the note can be delivered up at the trial and the payee may prosecute the suit to the use of his assignee.”
In the state of Iowa, under a statute similar to ours, which reads as follows, to wit: “No person is entitled to a mechanic’s lien who takes collateral security on the same contract.” The supreme court of Iowa held that “The taking of a mortgage from the debtor upon the same property covered by the lien and for the same debt is not taking of collateral security on the same contract.” See Gilcrest v. Gottsclialk, 39 Iowa, 311, and Mervin v. Sherman, 9 Iowa, 331.
The judgment of the district court is therefore reversed, and this cause is remanded to the district court of Bernalillo county, and said court is directed to dispose of said case in accordance with the law as declared in this opinion.
