184 P. 838 | Mont. | 1919
delivered the opinion of the court.
Action to foreclose a mechanic’s lien for materials alleged to have been furnished and used in the construction of a store building upon lots 17 and. 18, in the town of Geraldine, Chouteau County, Montana.
The complaint alleges the purchase, by defendant Welch, of materials for use in the construction of said store building of the value of $2,661.91; that the items so furnished and used constituted an open account between the plaintiff and defendant Welch from the second day of August, 1914, to the sixteenth day of January, 1915, inclusive; that said amount is still due and unpaid; that a mechanic’s lien covering all of said items was filed within 90 days after the date of the furnishing of the last item thereof; and that the defendants, other than Welch, claim
Defendants Gies, Flanagan, McKenzie, and Belden filed a separate answer, consisting of general denials and an assignment to them as trustees for the benefit of creditors. The plaintiff filed replies, denying all of. the affirmative allegations contained in the answers. The cause was tried to the court without a jury.
At the trial, plaintiff offered in evidence the notice of lien to which was attached a statement of account containing the items upon which the lien is based. To its receipt in evidence the defendants objected upon the ground that it was a statement made by G. W. Bulmer, assistant secretary of the plaintiff company;'that "it did not state that the same was made for plaintiff; that it did not contain a statement “that the matters set forth in the account, and the description of the property, are true; that it recites that all the facts that are stated in the notice and in the statement are true; but it does not state that the matters stated in the lien are true as required by law.” This objection, when made, was overruled; but the lien finally was stricken out, on motion of defendants, upon the ground that it was not verified in accox-danee with the statute, and that it was “not shown by competent proof”that “any of the items mentioned in the lien as having been furxxished in the months of December and January entex’ed into and became part of the con
Upon this record we are to review the proceedings had in the court below resulting in the judgment appealed from. Appellant asserts that twelve errors were committed by the trial court, culminating in the exclusion of plaintiff’s lien claim. If the rejection of plaintiff’s claim of lien was error, the other specifications need not be noticed.
In ruling as it did, the trial court doubtless had in mind the rule of construction several times applied by this court to section 7291 of the Revised Codes, to the effect that, in the pursuit of its purely statutory benefits, the various steps necessary to secure and perfect the lien are indispensable. (Wertz v. Lamb, 43 Mont. 477, 117 Pac. 89; Crane & Ordway Co. v. Baatz, 53 Mont. 438, 164 Pac. 533.) Is the lien notice deficient or defective? We think not. The statements in-the affidavit are in full accord with the requirements of section 7291, and evince a faithful adherence to all its commands.
Respondents’ counsel, in their brief, however, -say they are
In the affidavit before us, Bulmer swears positively that he is assistant secretary of the plaintiff corporation; that the statement of account of the lumber and materials is a just and true account, and that they were furnished and delivered for the purpose of being used in the building in question; that the notice contains a correct description of the property to be charged with said lien; and that all the facts therein stated are true. What more than a literal compliance with the statute could be demanded? Certainly, it is not to be presumed that perjury has been committed in its making. In that respect, however, the rights of the owner are effectively safeguarded by the pains and penalties the perjury statute imposes upon those who violate its provisions. As was said by Mr. Justice Sanner, in Crane & Ordway Co. v. Baatz, supra: “The account must be a just and true one, ‘after allowing all credits,’ and must be verified as such. The purpose of the affidavit is clear enough. It is not merely to entitle the lien claim to record, but to furnish a sane
The statute having been scrupulously followed, the paper in
Plaintiff’s claim of lien was therefore improperly excluded.
For another reason this case must be remanded for further
The statement on appeal shows that the cause came on for trial dn July 6, 1915; requests for findings filed on August 30; 1915; and judgment rendered and entered November 28, 1916. No findings, hdwever, are to he found in the record. The remarks of this court, in City of Helena v. Hale, 38 Mont. on page 484, 100 Pac. on page 612, are pertinent here: “But it is contended that this is a case of defective findings, and counsel cites the case of Bordeaux v. Bordeaux, 32 Mont. 159, 80 Pac. 6. In that case, Mr. Chief Justice Brantly said: ‘ There is in the record no bill of exceptions showing that the defendant, at the close of the evidence and argument in the cause, made written request for findings upon the subject of recrimination, or any other issue.’ But we regard this as a case of total lack of findings, rather than defective findings. The findings, if there are any,
The respondents seriously contend that the court erred in striking out all the evidence given in .support of the new matter set forth in their answers.- The complaint states a cause of action upon an open and running account, and plaintiff founds its cause upon that theory. ■ The answers of defendants are framed upon the theory that the materials were sold under two or three separate and distinct contracts.
Respondents, in their brief, insist that “Exhibit 1, an itemized statement of account running from July 24 to October 10, 1914, became an account stated for said amount and that the account between plaintiff and Welch was no longer an open account. * * * That to the extent of $1,600 plaintiff’s right to a lien is foreclosed by limitation of time, since the right accrued obviously not later than November 3, when the last of the items of August 17 were delivered. * * * That all of the items shown on the lien that appeared in the statement under date of October 10 were likewise foreclosed by reason of the plaintiff’s failure to file the lien.”
Upon these conflicting theories the case was tried. In any view to be taken of the matter, the testimony was all material and pertinent under the issues made by the pleadings. If the item of $1,600 constituted a separate and independent account, and the lien was not filed within 90 days after the last item was furnished, the lien claim wás imperfect to that extent. But that did not warrant the court in striking out all the testimony in support of the new matter set up in the defendant’s answers, nor justify its refusal to consider and give effect to testimony concerning the furnishing and delivery of materials which went into the building with a view to its completion, occupancy, and use for the purposes for which it was constructed. It is in evidence that the statement containing the $1,600 item was deliv
As said by Mr. Chief Justice Brantly, in Roy v. King’s
‘ ‘ The question whether the materials furnished and labor'
The supreme court of Minnesota, in Dennis v. Smith, 38 Minn.
In Missoula Mercantile Co. v. O’Donnell, 24 Mont. 65, 72, 60 Pac. 594, 596, this court said: “The burden is upon the plaintiff to establish his lien (Boisot, Mech. Liens, sec. 618), and, to support this burden, he must show, not only that he
The only remaining question arises upon the contention that there was a failure to prove that all the materials furnished by plaintiff and included in its claim went into the construction of the building. The testimony was sufficient, in our opinion, to make a prima facie case of delivery axxd use in the coxistruction of the building in question. A materialman is not obliged
The evidence is conflicting concerning the delivery of some of the materials incorporated in the lien claim, as to when they were furnished, as to whether or not they were lienable articles and tended to enhance the value of the property, and as to whether they were all furnished under an open and running account or under one general contx’act. These were all questions of fact upon which the court should have made written findings. Having failed to do so, the judgment must be re
Reversed and % remanded.