43 Wash. 1 | Wash. | 1906
This action was brought to recover a balance due on account of the purchase price of material furnished to he used in the
The appellants state in their brief that the most important question presented by the appeal is the construction of § 5900, Bal. Code, which provides that “Every person performing labor upon or furnishing material to he used in the construction ... of any . . . building,” etc., shall have a lien for the same. It is further stated that the respondent contended throughout the trial that it was only necessary for it to show that the material was furnished to- ha used in the buildings, whereas, the appellants contended that it must show not only that the material was furnished to be used in the buildings, hut that the same was actually delivered and used. The court below found, however, that the material was furnished to. he used in the construction of the buildings, and was actually so used, and if this finding is sustained by the testimony, the question suggested by the’ appellants does not arise in this case.
On the other hand, one of the appellants testified that he did not know whether all of the material for which the lien was claimed was actually used in the buildings or not, but that he was reasonably sure that it was- not, and was proceeding to state the reasons for his belief, namely, an estimate made by his architect, when stoppled by the court. He further testified that he was informed that the contractor for the buildings was engaged in the construction of another building in some other portion of the city, but there was no evidence that any material furnished for these buildings was delivered elsewhere. It was further shown that the first delivery of material was made on the wrong corner of the block,
“It is undoubtedly true, that it is not affirmatively and specifically'shown, that each separate article charged in these bills actually went into such buildings. It does appear, however, that each one of the three separate claimants made contracts for furnishing materials for said buildings; that in pursuance of said contracts they furnished materials, and supposed that they were to be used in the construction of said buildings; and, as to a few articles, that they did not in fact go into said buildings. T'o this there is no- contradictory testimony; nothing tending to show that any of the materials so delivered were in fact taken away by the builder and used elsewhere; nothing even tending to- raise a suspicion that there was any deviation of materials from their intended and contracted use. Under these circumstances, it would not be justice to¡ refuse the lien. To require direct and positive testimony, that as to each specific article delivered, that it was in fact used in the buildings, would make the mechanics’ lien law more of a burden and a trap' than a blessing and a help. When materials are contracted for use in a proposed building, when they are delivered in pursuance of such a contract, and when the building is ini fact completed, and there is no
It is further contended that the persons to whom the material was furnished were not the appellants’ agents and were not authorized to purchase the material on their account. The original order was given by one of the architects for the buildings before the contract was let, but after the letting of the contract the material was furnished to the contractor, and this original order was paid for by the appellants with the exception of a few dollars. The other'material, called extras, was furnished in part while the original contractor was in charge of the construction work, and in part after he had absconded and while the appellants and their servants and employees were in charge. These persons in charge were authorized to construct the buildings, and must have been authorized to obtain material therefor, as the appellants made no provision for material from any other source or at all. Under these circumstances we think that agency either actual or statutory was clearly proved.
The motion for a new trial was properly denied in so> far as it was based on the record before us, and in so far as it was based on newly discovered evidence:, the showing upon which the motion was made does not appear in the record. We therefore cannot consider it. In any event, the only purpose of the newly discovered evidence was to impeach one of the respondent’s witnesses as to the date of the dissolution of a certain partnership, and ordinarily a new trial will not be granted for any such purpose. Furthermore, no showing was made that the date of dissolution, if material, could not have been proved at the trial by other testimony.
We find no error in the record except in the allowance of interest. Through inadvertence: interest was computed on the
Mount, C. J., Fullebton, Hadley, Cbow, and Dunbab, JJ., concur.