63 Wash. 387 | Wash. | 1911
This is a bill in equity to foreclose a material-man’s lien. There was a judgment of dismissal, from which the plaintiff has appealed.
“(5) That on the 18th day of August, 1909, in pursuance of a request and order from said A. E. Grafton, and without any knowledge on the part of said A. L. Dillon, and not in performance of the original contract between plaintiff and Dillon, plaintiff herein sent to the said dwelling house a box containing certain lights of glass, which were delivered by the plaintiff for the purpose of replacing defective panes of glass theretofore put into said building; that two or three panes of glass so delivered on August 18th, 1909, were put into the building, being substituted for defective panes, the defects not being apparent or discovered until after all material furnished by said plaintiff had been put into the house; and the balance of the glass so delivered on August 18th, 1909, was returned to plaintiff; that at the time of such delivery on August 18th, 1909, no statement thereof, either original or duplicate, was delivered or mailed either to A. E. Grafton, Anna S. Grafton, or the Minnesota Investment Company, the owners of said property.”
“Moreover if the time for filing the lien was extended by the last labor done; this was performed at his [the owner’s] special instance and request, and he must be deemed chargeable with the knowledge of the legal consequences of his own act.”
The same rule is concretely stated in McIntyre v. Trautner, 63 Cal. 429, as follows:
“Defendant cannot' be heard to say that the additional work, done at his -request to complete the contract, was not a continuation of the previous work, ■ and done • under the same contract.” .. ...
The following authorities announce the same view: 27 Cyc. 147, 148; Gordon Hardware Co. v. San Francisco & S. R. R. Co., 86 Gal. 620, 25 Pac.. 125; Minneapolis Trust Co. v. Great Northern R. Co., 74 Minn. 30, 76 N. W. 953; Id., 81 Minn. 28, 83 N. W. 463; Shaw v. Fjellman, 72 Minn. 465, 75 N. W. 705;. Stidger v. McPhee, 15 Colo. App. 252, 62 Pac. 332; General Fire Extinguisher Co. v. Schwartz
We think the facts found bring the case squarely within the statute. The language of finding 5, that the delivery of August 18 was “not in performance of the original contract,” is a conclusion of law which does not flow from the facts stated.
The respondents rely upon the case of Ellsworth v. Layton, 37 Wash. 340, 79 Pac. 947. In that case the work was completed and accepted during the first days of October. On January 6, upon the demand of the owner, the contractor put metallic flashings over six windows that had been inadvertently omitted, and on February 13 certain drain tile was relaid. The claim of lien was filed on April 3. It was held that the time for filing the lien commenced to run upon the completion and acceptance of the building. As we have seen, the court found in the case at bar that the material furnished by the appellant and put into the building by the contractor was not accepted. The Ellsworth case is therefore distinguishable.
Nor does the fact that the appellant failed to furnish the owner a duplicate statement of the items furnished on August 18 defeat the lien. The statute, Rem. & Bal. Code, § 1133, provides that every person furnishing material to be used in the construction of a building “shall, at the time such material or supplies are delivered to any person or contractor,” deliver or mail to the owner of the property upon which the material is to be used, a duplicate statement of all such materials “delivered to any contractor or person.” In this case the material was delivered to the owner upon his demand. The words “person or contractor” have no reference to a delivery
The material, aside from that furnished on August 18, was furnished to the contractor and accepted by him. The respondents must, therefore, look to the contractor for any damages resulting from material put into the building which ■does not conform to the contract.
The judgment is reversed, with directions to enter a decree establishing the respondents’ lien for the items set forth in finding 4, with legal interest, together with a reasonable attorney’s fee and costs, and to decree a foreclosure of the lien.
Fullerton, Parker, and Mount, JJ., concur.