59 W. Va. 370 | W. Va. | 1906
J. H. O’Niel filed his bill in equity in the circuit court of Mingo county against Charles B. Taylor, W. B. Cox, Bank of Williamson and others to enforce his mechanic’s lien against Lots 1, 2, 3, 4, and 5 in Block No. 17 in the Town of Williamson, the property of defendant Taylor, upon which was located an hotel building and its appurtenances known as the “Hotel Moose,” which mechanic’s lien was duly recorded on the 31st day of January, 1903, claiming a balance then due of $1,259.35 after allowing all credits to which the defendant was entitled. The defendant W. B. Cox also filed and recorded a mechanic’s lien upon the same property claim
Charles B. Taylor filed his answer denying the validity of the liens of the said plaintiff and of W. B. Cox and the said Georgia Lumber Company and denying especially that if liens at all they covered Lots 1 and 2 of said real estate. Defendants Cox and the Georgia Lumber Company filed their answers, setting up their respective liens. On the 15th of September, 1903, the commissioner filed his report showing the various liens upon the said property. First, the vendor’s lien; second, the several mechanic’s liens including the interest, that of plaintiff at $1,110.18 and W. B. Cox $1,413.44 and the Georgia Lumber Company $992.26, which three liens were reported as the second lien upon Lots Nos. 1, 2, 3, and 5 and the one-half of Lot No. 4, and the first lien upon the other half of Lot No. 4; and besides the judgment liens reported with their priorities he reported as the ninth lien by virtue of a deed of trust in favor of C. H. Jones, trustee, to secure the payment of $4,000 due by note dated July 31st, 1903, four months after date to the Bank of Williamson, which was the ninth lien on Lots 3, 4, and 5 of Block 17. The Georgia Lumber Company excepted to the report because it did not report the amount properly due on its me
The cause came on to be heard on the 24th day of January, 1904, and the court sustained plaintiff’s exceptions Nos. 3, 4, 5, and 10 affecting the lien of the plaintiff and eliminating therefrom the item of $10 for unloading dry lumber, of $7 for unloading framing, $6 for hauling lumber, and .$3.95 for payment of freight on material, and sustained the exception No. 4 touching the lien of W. B. Cox and eliminating therefrom the item of $100 for right of sewer on four lots and sustained exceptions to the report allowing several judgments, one in favor of Emmons, Hawkins Hardware Company as the fourth lien, the judgment in favor of Valentine, Newcomb & Carder as part of the fifth lien, the judgment in favor of W. H. H. Holswade as one of the fifth lien, and the judgment in favor of G. A. Northcott & Co., counsel for said lienors stating in court that said judgment liens had been paid off and discharged; and sustained the exception of the Georgia Lumber Company to the said report and overruled all other exceptions; and confirmed the commissioner’s report in all other things and decreed the liens upon the property as mentioned in said report as corrected and decreed that several liens be paid by said Taylor with interest on the same respectively from the 6th of September, 1903, until paid, and the costs of this suit decreed to be paid to the plaintiff including the sum of $300 for counsel fees to be taxed as part of the costs. “It is further adjudged, ordered and decreed that the said defendant C. B. Taylor do within thirty days from the rising of this court, pay unto the said W. J. Williamson, J. H. O’Niel, W. B. Cox, The Georgia Lumber Company, a corporation, The Bank of Williamson, a corporation, and The Ke3rstone Hardwood Lumber Company, their said lien debts and judgments respectively as hereinbefore ascertained and adjudicated, with interest thereon such respective dates herein named until paid, and the costs of this suit, including the said sum of $300.00, counsel fees allowed counsel for the plaintiff for conducting this suit; and in default of such payment, it is further adjudged, ordered and decreed that the said property, to-wit, Lots Nos. 1, 2, 3, 4, and 5 in Block No.
As to the first, that no notice was given to the attorney for defendant of the completion of the said report by the said commissioner, and the second, that the report was not retained ten days in his office; the commissioner’s report shows and closes with the statement “that the attorneys representing the various parties to this case waived the retention of this report for the usual period of ten days for exceptions thereto and agreed that the same might be filed when completed.” This clearly implies that it was the intention of the parties that it should be filed without notice of its completion,
As to the third exception in this group of exceptions, it will be treated with exception “Fourteenth” going to the claim of plaintiff O’Niel. As to the fourth exception mentioned, if the evidence was taken by the commissioner and in his presence it was not necessary that he should read and examine the evidence after it was written out in long hand by the stenographer, if the commissioner properly digested the evidence as it was given, which he did if he was attending to his duties properly as he was presumed to do. It is said, however, that a portion of the evidence was taken in the absence of the commissioner. The only evidence of this fact is the affidavit of H. K. Shumate who says that he was present during the taking of nearly all the depositions filed with the commissioner’s report “that during the taking of said depositions said commissioner was frequently engaged in attending to business in the office of the clerk of said court, being a deputy therein, and was at different times absent from the room where taken, while same was being taken by the stenographer.” He does not say that the commissioner was out of the hearing of the witness being examined; for all that appears in the affidavit the commissioner might have been in an adjoining room with the door open and while attending to something else might have heard and understood everything that the witness was saying. The presumption is that the commissioner was giving attention to his official duties as commissioner and there is not sufficient evidence of his absence and inattention to overcome such presumption.
The fifth exception “That said report was prepared and typewritten by counsel of one of the defendants, W. B. Cox, who was attempting to set up a mechanic’s lien against this defendant, exceptor.” In support of the fourth and fifth exceptions the exceptor filed the affidavit of Bert Shumate the stenographer who took down the evidence and states that
The next exception is: “First: That said pretended lien is defective and invalid, for the following reasons: 1st. That said pretended account is not itemized as the law provides,— especially as to the item of $875.00 for erecting and constructing third story addition to the building mentioned in said lien, and making alterations and improvements in the first two stories thereof — there being no specific contract for said work, at said sum. 2nd. No dates are given for any of the different jobs of work done on said building. 3rd. That the owner of said building and lots mentioned in said lien are not shown or stated therein, as required by statute.” As to the item of $875.00 the statute does not in a contract directly with the- owner of the property require an itemized account of the
Plaintiff in his testimony concerning different items swears to the correctness of it and says they had no contract for that work as to the price to be paid for it, that Taylor told him to go ahead and do it and charge what was right and he did so. This was for erecting and constructing a third story addition to the building making alterations and improvements on the first and second stories, for which the sum of $875.00 was charged and he states that when he gave C. B. Taylor his account the only item that “he kicked on” was the item of $10 for a plank walk around the building. It is objected that no dates are given for any of the different jobs. This was a running account for a large amount of work done upon the building and appurtenances commencing in the summer of 1902 and it was shown that the work was completed on the 2nd of December, 1902. In some of the cases cited by defendant’s counsel the dates of performing the work and furnishing the material are required by the statutes to be given, but the only date material under our statute is as to the time the work was completed or the last of the material furnished and it is proven in the case of each and all of the liens herein that the work and material furnished as to the last item necessary to the completion of the work were furnished and performed within the sixty days before the filing of the lien as required by the statute. The item of $275.00 for building and digging a cellar it is claimed was done under a specific contract and was completed in the summer of 1902, that no lien was filed therefor within sixty days, therefore it should not have been allowed. The record shows that this work was carried on along with the rest of the work and in connection with it and was a part of the improvements put upon the same property, and the fact that a specific contract was made for any particular part of the work has no significance and does not change the fact that the improvements were being put upon the same property at the same time and it was entirely proper to include all the work in one account. The question is, at the completion of the work what was due and still owing for the work performed for which a lien might be taken? If the contract for the item of $275,00, being as claimed a specific con
The sixth exception is the item of $35.00 charged for the construction of a fence around the hotel building, and the seventh exception is an item of $10.00 for constructing a board walk around the same. Our statute, section 2, chapter 75, Code, provides the lien “for constructing, altering, repairing or removing a house, mill, manufactory, or other building, appurtenances, fixtures, bridge, or other structure by virtue of a contract with the owner or his authorized agent.” In Henry v. Plitt„ 84 Mo. 237, it is held: “Our statute gives a lien for fences and walks on the premises, when they have been constructed as appurtenant to the buildings, and at the same time.” In this case, the Judge when rendering the opinion, says: “They have been so adjudged in other states under statutes more limited in the words employed than our own. ” And in McDermott v. Claas, 104 Mo. 15: “Where walks and fences are constructed under one entire contract for the erection of a building, the mechanic has a lien for the labor and material expended on them.” The board walk and the fences around the house are appurtenant to and necessary for the convenient use and occupancy of the building and are properly covered by the lien.
The eighth exception is as to the item of $50.00 for erecting and constructing a sample room. It is contended that this item should not be allowed because it was a distinct contract and building. It was built in connection with the hotel and as a part of it and for the reason given in relation to the item of $275.00 the same was properly overruled. The same applies to the eleventh exception to the item of $35.00 for the erection and construction of a coal house and as to the twelfth exception to the item of $16.00. for ei’ecting and constructing a cross-fence, the same was properly overruled for the reasons given as to the sixth and seventh exceptions
The thirteenth exception goes to the items of $20.40 for twelve hundred feet of ceiling and $12.00 for hanging doors to closets and building claiming that these items were under special contract and should have been the subject of a separate mechanic’s lien, and the exception is not well taken for the reasons before given with reference to such special contracts.
The fourteenth exception is as follows: “Fourteenth: The commissioner refused to allow undisputed credits which should have been given exceptor. The Thacker work and work on office amounts to $852.50, crediting the two checks of $250.00 each on Thacker work would leave $352.50 due for which no lien is set up in this case. The other credits amount to $1,523.55 and were to be credited on the Moose Hotel (see depositions of Taylor, page 49) reducing amount for removing house, $800.00. This would leave to go on said lien $723.55 instead of $200.00, which seems to have been deducted from lien by commissioner. All the disputed credits were disallowed. It was also shown that the item charged of $875.-00 was exorbitant, and three carpenters jointly testified that about $600.00 was fair estimate for such, after adding twenty per cent thereto for contractor. This large preponderance should have reduced that item at least $275.00; other items were likewise shown to be overcharged — commissioner failing to give any credit for such overcharge.” This exception involves many credits claimed by defendant on account of the mechanic’s lien of plaintiff. Considerable evidence was taken concerning these matters and was very conflicting. The defendant filed many checks paid to plaintiff some of which he claimed were to be applied on the plaintiff’s mechanic’s lien, and the commissioner failed to mention or pass upon any item of credit so as to enable the court to determine whether the same were properly allowed or rejected, nothing to show what credits, if any, other than those allowed, and they do not appear, should have been applied to the payment of the mechanic’s lien and which were claimed by defendant should be
so applied, and does not designate a single credit claimed and disallowed. In Gage v. Arndt, 121 Ill. 491, it is held: “Not sufficient on such a reference to report the testimony en masse, and the amounts in the aggregate, with no reference to items
The rest of the exceptions taken to the report are to the account or lien of defendant Cox and the exceptor refers to the first five general exceptions made to the lien of the plaintiff and are adopted by the exceptor here. These have already been disposed of. The second exception is, “That the account filed is insufficient and uncertain. The same shows not only work done on the Moose Hotel, but upon Sample Hoorn, Coal House, and Sewer Work for which no lien can be had upon said building.” The sample room and coal house, as we have seen, are appurtenant to and a part of the hotel. In 20 A. & E. E. L., 310, it is said: “In Massachusetts it has been held that a mechanic’s lien may be acquired for the construction of a drain pipe from the cellar of a house into a sewer in the street, for such drain pipe is a part of the house.” In the Massachusetts case referred to Judge Allen says: “The piping, inside of the house, and outside of it to the sewer, was necessary to the use of the house and a part of it, and was included in the contract for building it. The house would be incomplete and unfinished without the pipe, and it would pass by a deed of the house as a part of it. It is immaterial whether it was inside or outside the walls of the house, or whether it extended one foot or thirty feet.” It is as much a part of the house and equally as essential as a chimney or a flue to carry off the smoke. Indeed, the house could not be used without it. The third exception to the lien of defendant Cox is as to the item of $415.00 for heating contract, boiler $50.00, and four radiators $40.00. This was claimed to be under a separate and distinct contract for a specific sum and was compleied more than sixty days before filing of said lien, and claiming that the heating could not be tacked upon the plumbing contract so as to bring it within the sixty days. The same argument applies to this as to the items of $875.00 and $275.00 in the lien of J. H. O’Niel. The account of Cox was a running account beginning July 4th and ending December 10th, 1902. The sixth exception is that the whole plumbing account on the hotel should not be allowed because not filed within sixty days, but
It is assigned as error to decree the mechanic’s lien of O’Niel and Cox, if they are held to be liens at all upon Lots Nos. 1 and 2, as the Hotel Moose is claimed by defendant
The sixth assignment of error is that the court decreed the sum of $300.00 as counsel fees for the plaintiff. This is conceded to be erroneous and is not contended for by the defendant, but it appears from a supplemental record brought up on certioro/ri that the defendant gave notice that he would move to correct the decree by setting aside that part of it decreeing the said $300.00 and tendered and filed in the clerk’s office in vacation on the 16th day of June, 1904, a release of said decree for said $300.00, but the circuit court refused to take any action upon it because it said it was without jurisdiction while the case was pending in the supreme court of appeals.
The seventh error assigned is the overruling of plaintiff’s
The eighth assignment set out in the petition: “It was error to decree the sale of lots Nos. 1, 2, 3, 4 and 5, for the payment of the liens adjudged in favor of the Bank of Williamson on one of said liens, to-wit, the sum of $4,000.00, as it did not consist in a lien against lots Nos. 1 and 2.” This assignment is well taken because the deed of trust to secure the $4,000.00 was only executed upon the three lots Nos. 3, 4, and 5 and did not include lots Nos. 1 and 2. The commissioner’s report as well as the decree was correct in that regard except that part of the decree which provides for the sale and it should not have decreed the sale of the whole property together, but the three lots Nos. 3, 4 and 5 should have been sold separately.
For the reasons herein stated that part of the decree which provides for the sale of the property and as far as the decree overruling exception No. 14 to the commissioner’s report touching the mechanic’s lien of O’Niel, and the seventh exception concerning the lien of defendant Cox and tbe allowance of $300.00, counsel fees to plaintiff, be and the same is reversed, and in all other respects the decree is affirmed; and the cause is remanded to the circuit court of Mingo county for recommittal to the commissioner to report upon the various credits which should be allowed and which should be disallowed as set out in the said fourteenth and seventh exceptions respectively; and for further proceedings to be had therein according to the principles laid down in this opinion and the rules governing courts of equity.
Affirmed m part. Reversed m part.