72 Minn. 465 | Minn. | 1898
This is an action to foreclose a mechanic’s lien, and the question raised is whether the lien statement was filed within the statutory time.
The complaint alleges that the defendant Fjellman was the owner of the land on which he was erecting a building; that on March 30,1895, he entered into an agreement with plaintiffs whereby it was agreed that they should furnish, place, and construct “a full and complete plumbing and heating plant” in the building, complete said plant in a good and workmanlike manner, “keep and maintain the same in good and perfect condition and running order for one year from the date of the completion” of the same and of its acceptance by Fjellman, and execute to him a written guaranty to that effect, and that, in consideration .thereof, he agreed that at the end of such year, on the full performance by plaintiffs of said contract on their part, he would pay them the sum of $1,075; that plaintiffs 'commenced the construction of said plant March 31, 1895, and the same was completed December 31, 1895, and accepted by Fjellman January 10, 1896; that on the latter date plaintiffs executed a written guaranty pursuant to the contract, and, in performance and fulfilment of the same during the year in which said guaranty was in force, furnished labor and material rendered necessary in order to maintain the plant and keep it in repair; that said repairs were furnished January 8, 1896, November 19, 1896, and December 31, 1896, all of which are set out in a bill of particulars made a part of the complaint. The lien statement was filed March 13, 1897.
It is further alleged that the defendants Busch and AnheuserBusch Brewing Association claim some interest in the property superior to the right of plaintiffs. These two defendants demurred to the complaint on the ground that it does not state a cause of action; and from an order sustaining the demurrer ,-plaintiffs appeal.
The statute (G. S. 1894, § 6236) requires the lien statement to be filed within 90 days after the time of furnishing the last item
As against Fjellman, who made the contract, the lien statement was in our opinion filed in time* Of course, the stipulation for maintaining the plant for one year did not of itself extend the time for filing the lien. On the .contrary, this extension of the time of payment, if no additional labor or material had been furnished, would have waived the right to a lien for what had been done. Flenniken v. Liscoe, 64 Minn. 269, 66 N. W. 979. But, when plaintiffs entered into the contract, they took their chances as to whether or not it would be necessary to furnish, during the year, additional labor or material for which a lien'might be claimed, and, if none was so furnished within 90 days of the end of the year, the lien for the whole claim would be waived.
The contract to construct the plant, and maintain it for one year after it was constructed, was, as between plaintiffs and Fjellman, one entire contract, even though it provided that a written guaranty should be executed when the original construction was completed. As against Fjellman, who made the contract, it is an entirety, and the lien statement was, as against him, filed in time to preserve the lien for the whole claim. But as to an innocent third party, who, after the plant was completed, acquired an interest in the property without actual notice or knowledge of the character of the contract, it should be regarded as in fact two separate .contracts, one of which was to be completely performed before the other was to be commenced, and, as to such third party, the lien statement was not filed in time. If by one contract A. should employ B. to construct a house on the land of the former, and at the end of six months, after the house was fully completed, to commence the construction of a barn on the same land, and thereafter construct the same, it might be an entire contract, as between the
As against a mechanic’s lien, the rights of subsequent purchasers and incumbrancers are not, as a general rule, any greater than the rights of the owner who contracted for the improvement. But there are exceptions to this rule. Thus after it was supposed that the work had been completed, and it was accepted or taken possession of by the owner, he or his agent might extend the time for filing the lien by requiring additional work to be done to remedy defects subsequently discovered, and the time for filing the lien would commence to run from the completion of such additional work. National v. O’Reilly, 85 Ill. 546; Jeffersonville v. Riter, 138 Ind. 170, 37 N. E. 652; McIntyre v. Trautner, 63 Cal. 429. But after the work has been apparently completed, and all further work has ceased for an unreasonable length of time, and in the meantime a third party has acquired a right or interest in good faith for a valuable consideration, the owner who made the contract may thereafter waive his own rights, and extend, as against himself, the time for filing a lien by consenting to the performance of further work to remedy such defects; but he cannot waive the rights of such third party, or extend the time of filing a lien as against him. Nichols v. Culver, 51 Conn. 177; Cole v. Uhl, 46 Conn. 296; Sanford v. Frost, 41 Conn. 617; Conlee v. Clark, 14 Ind. App. 205.
In our opinion, the same principles apply here. But the burden is on these respondents to show that they are innocent purchasers or incumbrancers for value without notice; and, until that appears, they stand in no better position than Fjellman himself. The case at bar is in principle much like Northern v. Cleaveland, 129 Mass. 570, which we cited with approval in Scheible v. Schickler, 63 Minn. 471, 65 N. W. 920.
This disposes of the case, and the order appealed from is reversed.
