Porteous Decorative Co. v. Fee, No. 1713

No. 1713 | Nev. | Apr 15, 1907

By the Court,

Sweeney, J.:

An action was instituted in the District Court of the Second Judicial District in Washoe County to foreclose a lien filed by the Porteous Decorative Company against Dr. George Fee. During the opening of plaintiff’s case, which was tried before the court without a jury, plaintiff's attorney offered in evidence the lien in question, to which defendant’s attorney objected upon the ground that the "lien is void and invalid, in that it does not conform to the requirements of the statutes of our state upon the ground that the claim of lien fails to state the terms, the time given, or the conditions of the contract upon which the same is based as required by the statute.” The court sustained said objection upon the ground "that the lien is defective * * * in not stating the terms of the contract which was entered into,” and rendered judgment against plaintiff in favor of defendant for Ms costs. From this judgment and order denying plaintiff’s motion for new trial, plaintiff appeals.

The part of the objection sustained by the lower court being fatal to appellant’s contention, it will be unnecessary to consider any other objections urged by counsel. The testimony adduced at the hearing of this action discloses-that an express oral contract was entered into between appellant and respondent, and plaintiff’s complaint is based on an express contract. An averment in the complaint of appellant alleges: "That on or about the 4th day of June, 1906, at the City of Reno, Washoe County, Nevada, the plaintiff and defendant entered into an agreement, whereby the plaintiff agreed to furnish the labor and material and make certain alterations and repairs upon the premises of the defendant known as 'No. 144 Sierra Street,’ Lot 7, Block 5, City of Reno, Washoe County, State of Nevada, and the defendant agreed to pay the plaintiff therefor the prices as set forth in the plaintiff’s statement and claim of lien, amounting to the sum of $221.93, a copy of which statement and claim of lien is hereto attached; marked 'Exhibit A,’ and made part of this complaint” — and further avers that all of said work and material were furnished in accordance with the terms thereof.

Respondent denies the material allegations of the complaint, and avers that the work agreed upon in said contract was to be for no greater sum than $190, specially denies that respondent fully performed the conditions of the contract entered into between them, and in the way of a further and separate and distinct defense to said action sets forth: " That * * * plaintiff commenced the work of painting and repairing the’ said house and fence, but that the said work was done in a careless and negligent manner so as to be of little or no benefit to the said dwelling house and fence; that plaintiff painted portions of the said house with two coats of paint, and other portions of the house with only one coat of paint; and that the said house and fence still remain incomplete.” The terms and conditions required to be set forth in the lien therefore become of vital importance.

The lien in question contains the following item: "Outside work on house and painting of inside blinds, $190,” by which it is attempted to set forth in the said lien. terms and the conditions or things to be done for the money agreed upon in the contract on which this lien is based and asked to be foreclosed. A statutory lien can only legally exist when it is perfected in the manner prescribed by. the statute creating it, and, being a statute of a remedial nature, we believe should be liberally construed, and that a substantial compliance with the law is sufficient to create a valid lien. (Skyrme v. Occidental M. & M. Co., 8 Nev. 221; Hunter v. Truckee Lodge, 14 Nev. 28; Lonkey v. Wells, 16 Nev. 274; Maynard v. Ivey, 21 Nev. 245, 29 P. 1090" court="Nev." date_filed="1892-04-05" href="https://app.midpage.ai/document/maynard-v-ivey-3548896?utm_source=webapp" opinion_id="3548896">29 Pac. 1090.)

There are, however, certain plain requirements prescribed by the statute which are legally essential to the validity of every lien and without which it cannot exist or be enforced. As is well stated by Phil. Mech. Liens, 9, a lien is "a remedy given by law which secures the preference provided for, but which does not exist, however equitable the claim may be, unless the party brings himself within the provisions of the statute, and shows a substantial compliance with all its essential requirements.” As stated in the case of Malter v. Falcon Mining Co., 18 Nev. 213, 2 Pac. 51, "whatever is made necessary to the existence of the lien must be performed, or the attempt to create it will be futile. A substantial adherence to the terms of the statute in the notice of the lien is. indispensable. The omissions, if any, in the notice and claim as recorded, cannot, in essential particulars, be aided by any averments in the complaint or by extrinsic evidence.” (Bertheolet v. Parker, 43 Wis. 551" court="Wis." date_filed="1878-01-06" href="https://app.midpage.ai/document/bertheolet-v-parker-imp-4009849?utm_source=webapp" opinion_id="4009849">43 Wis. 551; Santa Monica L. & M. Co. v. Hege, 119 Cal. 379, 51 P. 555" court="Cal." date_filed="1897-12-18" href="https://app.midpage.ai/document/santa-monica-lumber--mill-co-v-hege-5448950?utm_source=webapp" opinion_id="5448950">51 Pac. 555; Malone v. Big Flat Co., 76 Cal. 578" court="Cal." date_filed="1888-06-16" href="https://app.midpage.ai/document/malone-v-big-flat-gravel-mining-co-5443658?utm_source=webapp" opinion_id="5443658">76 Cal. 578, 18 Pac. 772; Feed v. Norton, 90 Cal. 590" court="Cal." date_filed="1891-08-31" href="https://app.midpage.ai/document/reed-v-norton-5445458?utm_source=webapp" opinion_id="5445458">90 Cal. 590, 26 Pac. 767, 27 P. 426" court="Cal." date_filed="1891-08-31" href="https://app.midpage.ai/document/reed-v-norton-5445458?utm_source=webapp" opinion_id="5445458">27 Pac. 426; Wagner v. Hansen, 103 Cal. 104, 37 Pac. 195.)

The object of a lien, in addition to notifying the owner of what is claimed and securing the lienor’s rights, is to apprise prospective purchasers, or persons who might desire to become interested in the property, of the nature of the claim against the property, and under what conditions, if they acquire the property, they must assume the same. Our statute provides, among other things, that a lien must contain "a statement of the terms, time given, and conditions of the contract.” (Section 3885, Comp. Laws.) No one can definitely say from the vague statement in the lien purporting to set fo.rth the conditions of the contract upon which this lien is based whether or not the house was to receive one, two, or three coats of paint, or whether the "outside work on the house” called for the shingling of the roof, the construction of an additional porch, or the building or repairing of a fence or walk around the premises, and would not be sufficiently explicit to a prospective purchaser of the property, or to any one who might desire to become interested in the same, whether, if he assumed the lien, he would secure the value called for by the contract upon which the lien was based. Wherever an express contract is entered into, as was the case in the present action, the terms and conditions of such contract should be substantially set out in the lien filed sufficiently clear to inform any reasonable person of what work was intended to be performed or material furnished as originally agreed on between the parties.

The vague statement in the lien heretofore quoted, attempting to state the terms and conditions of the contract, does not substantially comply with this essential provision of the statute, and thereby renders the lien void. Nothing in this judgment shall be construed as affecting the rights of the parties, except in so far as it relates to the validity of the lien.

The judgment of the lower court is affirmed.