152 Minn. 325 | Minn. | 1932
Plaintiff furnished material and performed labor in installing certain fixtures for a tenant in a new business block in Minneapolis, Minnesota. The court found the fixtures to be trade fixtures, placed
Respondent challenges the sufficiency of the assignments of error. Findings may be attacked on appeal from a judgment as without support, even though there was no motion for a new trial. St. Paul F. & M. Ins. Co. v. Allis, 24 Minn. 75; Anker v. Chicago Great Western R. Co. 140 Minn. 63, 167 N. W. 278. And so on appeal from an order denying a new trial we have held that findings other than those assailed in the motion in the court below may be challenged. Hrdlicka v. Haberman, 140 Minn. 124, 167 N. W. 363.
The only assignments of error sufficient under our practice are the subdivisions under III, namely, the finding: (a) That the fixtures were trade fixtures installed so as to be removable; (b) that none thereof were of such character as to become a part of the building and real estate; and (c) that the items admitted to be nonlienable are so intermingled in the lien statement and in the bill of par
Assignments I and II are clearly insufficient under Moody v. Tschabold, 52 Minn. 51, 53 N. W. 1023; Butler-Ryan Co. v. Silvey, 70 Minn. 507, 73 N. W. 406, 510; Nye v. Kahlow, 98 Minn. 81, 107 N. W. 733; Prosser v. Manley, 122 Minn. 448, 142 N. W. 876; Holford v. Crowe, 136 Minn. 20, 161 N. W. 213. Assignment IV is plainly without merit if the findings are sustained by the evidence. Assignment V alleging that the court erred in refusing to find that plaintiff was entitled to a lien upon the improvement to which its materials contributed and directing a sale of the same with the right of removal, is of no avail, for there was no request to make or modify any finding in the court below. Prosser v. Manley, supra.
It is quite doubtful whether the conclusion of law would not have-to remain, even if the findings of fact complained of were unsupported, for the findings left would not warrant any relief to plaintiff, and no other findings were asked for. But we need not rest-the decision on that narrow ground.
In the trial plaintiff admitted that about half in value of the items that were furnished were nonlienable. Yet both in the lien statement and in the bill of particulars a lien was claimed for all. Apart from the question whether, under section 7085, G. S. 1913, this destroyed the lien, it at least made it quite necessary for plaintiff to clearly designate and segregate the items, and the value thereof, which it claimed to be lienable from those which were nonlienable and were included in the bill of particulars. This was not done. We have attentively studied the record and can reach no other conclusion. It is probable that there is no way possible for plaintiff and its attorney to segregate the items satisfactorily, or at all. There were not only many different fixtures into which it would be extremely difficult to trace the various materials, but even more so the amount of labor expended on each. When work of this nature is in progress the parties seldom anticipate that liens may have to be resorted tp, nor do they realize the importance of preserving the evidence needed to establish them in court, especially where, as here, a large part of items furnished are nonlienable.
The order must be affirmed.