Pierson v. Sewell

discussion or treat- tention does not merit light of relevant factors be determined supra held that have danger posed an ment here since we such as: The inherent theory on the aircraft; expertise possessed, repre- the trial court’s instructions or retrial, defendants; liability were error and possessed, by the of strict sented as contradictory possibility knowledge hopefully, intended use of the defendants’ special aircraft, contributory negli- will not verdicts exist. gence assumption the risk of or trial a new remanded for Reversed and plaintiffs, any, in of fac- if consideration ap- Costs consistent with this opinion. aircraft, age of the its tors such as the pellants. previous repair and status and record of previous accident. J., maintenance and McQUADE, DONALDSON C. BAKES, SCOGGIN, District JJ., Plaintiffs-respondents argue that Judge (Retired), concur. the recent case of S. H. Kress & v.Co. Godman, 561 (1973) do

militates our result here. We agree. personal services Kress

were and there here defendants involved repairs make and it was al

were called to leged negligently. that such were also, argued following There it was Heating, PIERSON, A. John d/b/a repairs inspection in immediate Plaintiff-Respondent, repair defects in area would have revealed parts an accident. which later caused Sewell, hus- SEWELL and Marian Max F. Kress was reversed on the sole basis Defendants-Appellants. wife, band duty repairman on the the existence of a No. 11431. questions and a breach thereof were jury. have been submitted to the should Supreme Court of Idaho. implicit There it is of action cause Aug. 8, 1975. brought negligence contributory negligence of the was a owner at bar we hold

defense. So the case assumption contributory negligence plaintiffs’ theo are defenses to risk implied warranty.

ry of

In summary plaintiffs-re- we hold that

spondents theo- entitled to have their were

ry implied warranty submitted to

jury. the case involved rendition Since service, of action does a cause implied warranty in

not exist for breach part of the ac- of fault on the absence jury

tor. The be instructed should contributory negli- defenses of

gence assumption avail- the risk are defendants-appellants.

toble special also assert jury

verdict returned forms another,

inherently contradictory to one fatally

therefore defective and should have rejected by That con- court. appellants’ property. The trial court

found this work was done on a time and basis, computed by the lineal foot installed, heating ducts were being customary in trade.

During dwelling, the construction of the Brothers, contractor, general Butler experienced financial difficulties. Subse- quently, appellant Max had further payments progress general contrac- to the January tor Max Sew- withheld. requested ell from the various subcontrac- respondent, tors, so including lien waivers lending release that the institution would necessary funds. Each subcontractor Respondent gave a lien executed waiver. January appellant on his lien waiver to then dis- The proceeds of bursed working the various subcontractors loan to of re- exception dwelling on the with spondent. the subcontractors All exception respon- of paid in full with the Kennedy, Lloyd Walker, & Walker funds nothing dent, from who received J. Falls, defendants-appellants. Twin for Re- lending institution. released lien March spondent filed a notice Jerome, plaintiff-re- for Jones, T. James spondent. filing notice days after his Several of ac- this cause respondent brought claim, McQUADE, Chief Justice. trial court The lien. tion to foreclose This an action to a mechan- foreclose discovery of upon appellants’ found ic’s lien. affirm We difficulties, financial prime contractor’s trial court insofar it ordered Butler assumed appellant Max Sewell foreclosed. find the lien was We the con- arising obligations from Brothers’ timely signed filed and that the lien waiver trial court dwelling. The struction respondent was of no force or effect. requested a lien found However, we reverse award of defi- for consideration respondent, from ciency judgment against appellants in the full. The payment in be was to event that the foreclosure notice of found that trial court also claim, satisfy respondent’s sale fail to stat- with in accord lien was filed claim portion reverse decree or had been cancelled it ute granting respondent personal judgment $2,195.85 discharged and that otherwise against appellants for for the due amount per- the work respondent was due supplied. materials and labor The furnished. materials and the formed lien foreclosed prop- real trial court ordered are owners of claim, attorney’s his respondent’s Respondent, satisfy erty County. in Blaine work- plus costs in the sum ing subcontractor, $750.00 as a labor and fees furnished appel- court held amount beginning $203.15. October pro- if the any deficiency liable for lants connection of a heat- installation insuffi- sale were system of the foreclosure ing ceeds dwelling being in a constructed perform labor due, plus attor- furnish material to cover cient construction, in the be used court also alteration ney’s fees and costs. repair personal judgment building of a recovery or structure. Boise allowed Payette Lumber appellants for the total amount Weaver.5 awarded. respondent The evidence shows that sub- contractor the prime contracted with con- assign urges Appellant eleven tractor, Brothers, Butler heat- install a ments of error which can be summarized system in ing appel- the construction of three into main issues: dwelling. such, lants’ supplied As file respondent Did a valid (1) through materials and employees prereq- timely notice of lien as a of claim therefore, and, right has I.C. 45-501 a action; instituting uisite dwelling. to a lien on perfect To right to a Did waive his lien, subcontractor, respondent, such as lien of lien waiv- by claim of must file of notice of claim lien within January 13, 1972; er on sixty days following the subcontractor’s subject appellants Are (3) to cessation of materi- furnishing labor or of judgment for the amount awarded? als. I.C. 45-507. appellants’ Many assignments of error of argue first that the trial findings by the deal with factual respondent in finding court erred that fur many trial re-affirm the rule court. We 14, nished labor on January and materials stated, of, credibility times that 1972, complete in order his to subcontract weight given to, at presented the evidence ap in connection with the construction of exclusively province is of the trial They respon pellants’ dwelling. claim of judge when acts as finder the court employees completed dent’s their on work v. fact. Ivie Peck.1 It that find follows 1971, dwelling in there December ings substantial, fact supported by of com Upon fore, timely lien was not filed. petent, although conflicting, will evidence ample, record we find examination appeal. not be disturbed on Id.2 conflicting to competent, although evidence Mechanic’s and related other re finding support trial court’s statute, statutory liens are creatures of ma performed supplied spondent labor requirements substantially must be com January 14, 1972. terials on plied perfect with in order to a valid lien. respondent’s Assuming Boone v. P. Logging Company.3 arguendo & B. Yet, these labor and liberally employees lien statutes are did to be furnish 14, 1972, argue provisions appellants construed: January “The me our extending not law, chanics’ and lien as a trivial nature laborers’ was of well work They running of lien. statutes, liberally all other lien must be time for the in- dwelling, argue construed with their ob that construction a view to effect substan- promote system, was jects justice.” heating cluding the Seafoam December, six- completed with Corp. Mines Vaughn,4 purpose tially v. claim filing a notice compensate persons period these statutes is to who ty-day 1166, 352, 1170 625, 342, (1972). P.2d 53 See 1. 94 Idaho 495 P.2d Idaho 1119 4. 56 supra Parker, Accord, Parker, v. v. 118, (1936). Idaho P.2d Durfee 90 410 Durfee Etc. Mines Idaho v. (1965). Etc. Co. 1; Mine 962 n. (1911). 300, P. 301 118 Idaho 20 Accord, Plumbing Schuler, Perry 96 Accord, (1925). 516, 150 P. 234 Idaho 5. 40 494, ; v. Mitchell P.2d 584 Idaho 581 McAdoo, 1057 P. 206 Idaho v. 35 McGill Flandro, 95 506 P.2d Idaho 455 Lewiston, City (1922) ; Chamberlain See P. 1069 129 See Idaho Idaho Packing Corporation, Layrite Company Eastern Lux, Products Weber appellant found running Thus, per- the March court Max Sewell from that time. sonally 9, 1972, asked untimely. be for a lien filing would understanding principle fol We re-affirm money necessary waiver was so that the six lowed in Mitchell v. Flandro that the from the loan re- construction would be ty-day period filing liens cannot for the by lending leased institution in order furnishing be extended revived or pay respondent. or the con trivial labor materials once prior Pierson completed. testified that tract has Sewell, execution of the Max di per or “Ordinarily, an article furnishing inference, rectly guaranteed if is forming a service trivial in character completed his subcontract he not the time to extend sufficient compensated. be would Max Sewell denied expired or to claiming revive this. He he testified that realized that the lien, article or the where the is furnished funds from the loan not would service com rendered a substantial after subcontractors; be sufficient all pletion contract, article and the upon but understanding that Butler required the terms expressly arrange compensate Pierson, he would thereof.”"7 secured from all of the sub waivers material When additional contractors so that the relied for fil- to extend the time would disburse the from the con claim, ing of the lien must the claimant loan all the subcontractors struction show that the materials or were ac- exception with of Pierson. Whatever tually in constructing repairing used may have been Pierson’s motivation for structure, they reasonably waiver, e., executing receipt i. the lien complete necessary to accord- construction payment disbursement of the loan ing to the terms of the contract.8 by lending institution, monies evidence presented Evidence was effect lacking parties to indicate that the ex that respondent’s spent one of employees pressly agreed payment that would be “good day” half installing registers, chang- forthcoming to Pierson from Sewell based ing two air ducts and replacing the ther- upon his execution of waiver. Taken Respondent mostat. testified that so- value, at testimony parties face of both called “finishing” work was considered the they indicates that different had intentions final work under contract and is cus- at time of execution of lien tomarily in done The trial trade. expressed, pur intentions never as to the finding court’s that work Janu- pose and Clearly, effect waiver. ary 14, 1972, part was done con- was no meeting there minds. The tract and therefore that the lien of March parties minds of the must meet on all timely was 9, 1972j supported filed is terms before a is formed.9 contract the record. argue general next the trial The rule is that an ex press court erred failing in find waiver lien of mechanic’s must be 13, 1972, supported by January executed on in consideration order to be respondent’s waived rights. The effective and McCorkle binding. trial v. Law- Supra Accord, Mendenhall, Gem Lumber 9.Turner State n. 2. Witty, Co. v. 37 & Lumber P. See Pacific Dailey, Timber Co. v. 111 P. 60 Wash. 7. 95 Idaho at 506 P.2d at 458. Witty, supra 8. See Gem Lumber State n. agent principal exist Accepting the trial deemed to between Inc.10

son & party.13 contracting consid- third characterization, the instant court’s in promise payment eration would be support the trial The evidence does not fails, the such consideration full. Where appellants initially finding court’s con Thompson no lien waiver is of effect. directly tracted for the “The Property states: Real furnishing heating system of a and labor agree- right to a lien is not waived installing system; in fact, and in ment of waiver executed consideration pre-trial contrary. order is The promise performed.” of a which was finding that a direct contractual relation reasons, purported For the above waiv- ship appellants respon existed between er failed and was of no effect. work, dent from the commencement of out implied side 45- I.C. § Appellants’ final contention is that et seq., must be set aside. Wood erroneously the trial court held them Sadler.14 liable for the due on the labor ap trial court also found that provided respondent. We pellant Max Sewell assumed the contract find that the trial in granting court erred and obligations general contractor, respondent personal ap judgment against Butler Brothers Company, Construction pellants for the total amount due on when that firm encountered financial diffi respondent’s claim and also find that during culties dwelling. awarding respondent trial court erred in The record indicates that Max deficiency judgment appellants instrumental securing lien releases from any portion may of the claim remain the various subcontractors, including re unsatisfied after the foreclosure sale. spondent. The record does not demon strate that Max respon court found took the further step provided dent request building at assumed the services contract and appellants the obligations general and that this contractual rela contractor. tionship respondent note that between We appellants and testified that sev homeowners, was on a time eral including appellants, and materials basis. took While provides I.C. 45-501 “money payout” over the that the contractor when Butler § experienced “shall be Brothers agent held to be the financial difficulties. owner But, . .” this applies only Mr. Butler testified that bills for la purposes supplies for directly of mechanics’ and bor and to material- submitted foreclosure,12 men’s the lending liens their were disbursed does encompass directly by not agency usual rela institution. Butler also tionship, whereby, a testified that contract Sewell did not take an over Dailey, (Ky.Ct.App.1953); 10. 259 S.W.2d 27 Lumber & Timber Co. v. Ram Pacific sey Peoples Savings (1910) ; Foley 566, Bank, Trust & 60 111 P. 869 Wash. 148 Course, Ind.App. 167, ; (Fla. (1970) v. Hialeah Race 264 N.E.2d 111 Beebe 53 So.2d 771 Corp. Caldewey Co., Const. 1951) ; R J. App.2d Circle Giammarino v. W. 10 Ohio Co., 127, (1967) ; (Mo.App.1934). Eason Oil Co. Const. 226 N.E.2d 573 72 S.W.2d 159 Co., v. M. A. Swatek & 170, 169 Okl. 36 Valley Nickerson, Lumber Etc. Co. v. 12. 13 Hamernick, (1934) ; McLellan v. P.2d 504 Pay 682, Boise 93 P. 24 Cf. 345, (1962) ; 264 Minn. 118 N.W.2d 791 Weaver, 516, ette Lumber Co. 40 Sponaugle Sons, McKnight G. R. & Inc. v. P. 150 Co., Const. (Del.Super.1973). 304 A.2d 339 Perkins, 391, Riggen v. See 42 Idaho p. Gypsum See 11. § United States Valley (1926) ; Lumber Etc. Co. v. P. 962 Randall, Ill.App. 610, 21 N.E.2d Nickerson, 93 P. (1939) ; Elder Merchantile Co. v. Ot Co., tawa Inv. See 100 Kan. 165 P. 14. 93 Idaho (1917) ; Eason Oil Co. v. M. A. Swatek & Rule I.R.C.P. 169 Okl. 36 P.2d 504 Cf. provisions job, workers, did not as 45-51219 were inter- I.C. did not direct § preted allowing as claimant to payroll out or other a lien treat sume or for portion incurred, any did in other the claim which remains bills not way pro- of Butler unsatisfied after distribution of the obligations assume regard dwelling. personal The ceeds of the sale Brothers to the foreclosure in against owning finding above of the trial court must the defendants In be set for lack of sufficient evidence. lien-encumbered interest. examin- aside Weber, holding we ing Id. the evidence is find that above Since insufficient upon appellants support relies support finding that assumed case which does not therefore, holding, contract, proposition. in instant case That since authority. arising supporting out without privity there is of contract no relationship,15 of the owner-subcontractor provisions dealing 45-512 of I.C. § personal judgment sustained cannot be priority with the and re distribution against appellants theory. on a contract course available to a lien claimant in the Lien et . under 45-501 foreclosures I.C. § of deficiency event from the seq. strictly are are actions in rem and ambiguous. foreclosure sale are While personam in proceedings: lien “The stat provides subsection three “. rem, ute operates in personam. and not in each claimant shall be entitled personal against It charge creates no any for balance after distri due him such property, charge owner but rather bution; . . .” the statute fails to against property of its to the extent specify party what parties said execu readily distinguisha value.”16 This case may against. attempt tion be had In ble from those cases wherein the lien was clarify defect, Court must con based provided or materials light strue of the intention section express implied accord with an contract legislature for purposes which the en possessor between claimant and the particular Bush acted act. v. Oliver. against of the interest the lien had which above, seq. As we noted 45-501 et I.C. § levied.17 The decree of provides proceeding for an in rem judgment against Sewells personal charge against no creates plus materials, due for labor and property, owner but which creates a attorney’s costs, fees and is set aside. itself, property to the ex value, pay its tent of to secure order The trial court also awarded a ment to the lien claimant for his labors or personal judgment against the Sewells improve property. materials used any deficiency that might remain after interpretation foreclosure 45- sale. of I.C. Weber v. Eastern Idaho Corporation,18 in inconsistent Packing 512 found Weber the relevant is “Judgment Flandro, 15. See Mitchell v. to declare 228, 19. § I.C. 45-512: 95 Idaho 506 Company (1972) ; priority. Clark Lumber v. P.2d in case the 455 . . And —. Passig, 667, chapter (1959). shall be insufficient 184 Kan. under this 339 P.2d 280 of sale pay all under it: lienholders City Lewiston, 16. Chamberlain v. 23 Idaho of remainder, any, if sub- of the the 3. Out 154, 164, (1912). Accord, 1069, 129 P. 1071 pro full, paid in rata shall be contractors Valley Nickerson, supra Etc. Lumber pay them if remainder be insufficient the supra Flandro, Mitchell 15; n. 13. See v. n. any, full, remainder, if shall be in and the Fades, Weeter Co. Lumber v. Idaho pro paid original and rata to the contractor 118 P. 289 professional engineers and licensed sur- the Olson, v. shall be entitled veyors ; See Ross and each claimant 95 Idaho any (1974) ; supra due him Mitchell Crystalline balance v. Flandro to execution after for ” distribution; Emphasis 15; Blake . . n. Lime such . 221 P. 1100 added. See 94 Idaho 386 P.2d 20. Lemston, City Jorstad of and DONALDSON, SHEPARD the mechan intentions of purposes and the BAKES, JJ., concur. as lien statutes noted and materialmen’s ics construes To the extent case above. McFADDEN, in (concurring Justice provide that a subcontrac 45-512 to I.C. § part dissenting part). in and personal judgment may a tor recover opinion insofar foregoing I concur in the against the the owner of lien-encumbered respondent, the majority the holds that as interest, by the subcon simply virtue of ap- lien on the Pierson, a was entitled to relationship, is here tractor-owner Weber respon- Sewell’s, pellants’, property earlier deci We reaffirm overruled. However, I entitled foreclose. dent was agency that the rela sions this Court opinion the portion from that dissent tionship only is specified in I.C. 45-501 enti- which holds in purposes property binding for appel- personal against judgment tled to a respect to bind the the lien does not any deficiency judgment for lants and to personally for owner premises. balance after sale due Lumber Etc. Co. Valley claim. Nickerson.21 recognizes, in its majority opinion must look The subcontractor validity concerning the discussion person ain direct to that with whom he is Pierson, executed that on por if a contractual for relief prior to the several occasions remains tion of claim under the lien agreed if Pierson com- Sewell Only unsatisfied where after foreclosure. compen- pleted be his subcontract he would relationship, there ais direct contractual discloses that sated. The record also Sew- express may personal implied, either ell, Butler, rep- and a Martin who was Mr. is in judgment be evidence had. Since the institution, met to resenting loaning sufficient to sustain trial court’s find problems. At discuss Butler’s financial ing obliga the Sewells assumed ap- time, early in it January, became this general contractor, tions of the and thus parent money fi- amount of requisite privity inwas with subcon nancing institution held to disburse for Pierson, tractor award of job outstanding all was insufficient to deficiency judgment against appellants was bills was contract. It Sewell erroneous. shortage recognized that in avail- also decree, its court able was about the balance due funds respondent “. awarded . . the sum and work he had Pierson for material attorney’s preparing fees $750.00 performed on the furnished bringing action to foreclose testimony home. There also same, 45-513 . . .” does I.C. § there was an undetermined amount preparation the lien. not allow fee money due on the Butler contract over Guyman v. trial court is Anderson.22 The “ex- price above contract because of reduce of attor instructed to the award request, tras” at furnished Sewell’s ney’s fees the amount it finds was ex rejected offer from pended preparing the lien. him institution to loan additional part, re- pay. which to The record funds with affirmed part, instruc- versed remanded with discloses that one of the reasons that Sew- tions. rejected opportunity ell to borrow addi- tional he to expecting funds was that was respondent.

Costs to ; Rig gen Perkins, v. (1907). Accord, P. 24 13 Idaho P. 962 City Lewiston, Chamberlain v. 23 Idaho Lumber P. 1069 Weeter Fales, 75 Idaho P. 289 20 Idaho Flandro, See Mitchell v. benefits, having from for real these receive funds commissions received the fact subsequently that Pierson estate filed his lien not- sales. withstanding any the waiver did not in determined that there it was When way prior personal obligation affect remaining with the lend- insufficient funds Sewell assumed to obtain the lien order and pay all claims Butler ing institution to waiver. between Sewell discussed Sewell, that But- It is to be it Butler and Pierson to the effect noted that was Butler, together negotiations who ler and Pierson had worked conducted contracts, Pierson, many obtain lien waiver from previous necessary had on Sewell was real estate salesman when Pierson assumed- ly experienced in agreeable giving Butler real estate transactions. occasions obligation. my opinion these facts it is time Under additional to meet obligated personally became Following this it determined Sewell discussion was Pierson, all the trial get lien waivers from Sewell would except court be affirmed. and that all should claimants pro- claims, paid would be their without lend-

rating money available from the

ing institution. approached Pierson to ob-

When waiver, expectation

tain his lien Pierson’s

was that he would execute the lien paid 539 P.2d 598 so that his from he could be claim FARM BUREAU MUTUAL INSURANCE lending funds disbursed institution. IDAHO, Plain COMPANY OF purpose of execution sole tiff-Respondent, waiver, thinking, was so that Pierson’s Sewell could have the funds available lending for disbursement HMELEVSKY, by through her Michelle to the claimant. Pierson was not advised guardian Ridgeway, litem, ad Mildred . that all other claimants who executed Defendants-Appellants, Ridgeway, Mildred paid, except himself. waivers were to be circumstances, my it is Under these conclu- implied sion that there was an offer COUCH, al., Defendants, Jr., et James H. Sewell to the effect that if Pierson would execute Sewell would see OF FARMERS INSURANCE COMPANY paid, was Corporation, claim IDAHO, Defendant-Respondent. benefit waiver which for Sewell’s acceptance was Pierson’s No. 11483. of this offer.

See, Perillo, Contracts, Calamari & 73§ Supreme of Idaho. Court Aug. 8, 1975. ' At the time that Sewell obtained the lien Pierson, obligated waiver from he himself money

to see that Pierson obtained —i. e., he thus assumed this as a obli-

gation. then used this lien waiver having

as the basis for institu- payment

tion release funds for to all claimants, and

other thus Sewell obtained agreement benefits of this ex- See, Perillo, supra,

tent. Calamari & my It that Sewell

286(b). conclusion

Case Details

Case Name: Pierson v. Sewell

Court Name: Idaho Supreme Court

Date Published: Aug 8, 1975

Citation: 539 P.2d 590

Docket Number: 11431

Court Abbreviation: Idaho