48 Colo. 73 | Colo. | 1910
delivered the opinion of the court:
This is an appeal from a judgment rendered in an action of replevin instituted on behalf of the members of Mesa Lodge No. -58, I. O. O. F., against P. A. Eice to recover the possession of certain brick. The defendant claimed to be the owner and entitled to the possession of the property in controversy, under and by virtue of a chattel mortgage, executed by the firm of Mowrey & Klein. The verdict of the jury was in favor of the plaintiffs, upon which a judgment was rendered, to the effect that plaintiffs recover from the defendant the possession of the brick in controversy, and in case a redelivery thereof can not be had, that they recover "from the defendant the sum of $367.50,, the value of the brick. It was further adjudged that plaintiffs recover from defendant the sum of $19.72 damages resulting from the unlawful and wrongful taking of such brick. From this judgment the defendant brings the case here for review on appeal.
The court instructed the jury that under the testimony the plaintiffs, at the time of the commencement of the action, were the owners of, and entitled to, the possession of the brick in controversy ;■ that they were of the value of $367.50; and that the only matter for them to determine was the damages plaintiffs sustained on account of the unlawful and wrongful taking and detention of the brick from their possession by the defendant. There was no dispute regarding the value of the brick, and if this instruction was correct it will not be necessary to consider many of the other alleged errors urged upon our attention by counsel for the defendant.
The statutes of the state provide that persons furnishing materials to be used in the construction of any building shall have a lien upon the structure for the value of the materials so furnished. — § 4025, Rev. Stats.; §2867, Mills’ Stats. (Rev. Supp.). Under this statute and the facts above narrated, the court’s instruction was correct. When materials are expressly furnished and delivered for use in constructing a specified building, and placed upon the ground for that- purpose, a lien attaches in favor of the person furnishing them, and the person for whom such building is being erected, although he may not be personally liable for the value of the materials
The reason for the rule is, that in snch circumstances the material man is entitled to a lien upon the structure for the construction of which the materials are sold and delivered; and for the protection of the owner of the building under course of construction, a qualified title to such material is vested in him. Of course, it will be understood that in stating the above rule it’is limited to the facts of this ease. Crawford, who sold the brick to Mowrey & Klein, did so in- good faith, and upon the credit of the building, for the reason that he sold them with the express understanding that they were to be used in the construction of that part of a building which the contractors had agreed to construct for the lodge. The brick were actually placed upon the ground in the immediate vicinity of the building, and part of them used in its construction. It would certainly be unjust to compel the lodge to discharge a lien which Crawford might have asserted for the brick furnished, of which it never had the benefit, and at the same time it would be equally unjust to defeat the right of the material man to a lien for the brick furnished by holding that because they had not been wrought into the structure, no lien attached. In the circumstances of this case plaintiffs had such an interest in the subject-matter of controversy, of which defendant was bound to take notice, when he obtained his mortgage, that as against him they were the owners of and entitled to the possession of such brick, and he acquired no interest therein as against them by virtue of his mortgage.
The action was instituted by B. B. Cassells for himself and all other members of Mesa Lodge No. 58, I, O. O. F. In the complaint it was alleged that
In their complaint plaintiffs alleged that the brick had been damaged in the sum of $125.00 for and on account of the handling and rehandling thereof. On the question of damages witnesses were asked what damage was done to the brick by hauling and rehauling, rehandling and unloading them. This was objected to on the ground that the damage thereby sought to be established is not a proper element of damage in a replevin suit. The objection was overruled. Injury to property as the result of its wrongful taking and detention by a defendant in a replevin action may be recovered when claimed in the complaint.—Stevenson v. Smith, 28 Cal. 102.
Part of the brick in controversy were what is known as No. 1 pressed brick. At the request of a representative of the lodge, 'the defendant permitted
Other errors are assigned on behalf of counsel for the appellant, but, as stated at the outset, many of them are immaterial if the peremptory instruction of the court to return a verdict in favor of the plaintiffs was correct, because they cannot affect the result when we have determined that this instruction was correct.
The judgment of the district court is affirmed.
Affirmed.
Chief Justice Steele and Mr. Justice White concur.