190 Iowa 945 | Iowa | 1921
If it be held that the hotel building was one building, and that the contracts other than the one between the two plaintiffs should be construed as one contract, we assume that this appellant would make no controversy as to the rights of the contractor, owner, and subcontractors, under the statute and cases before cited. There are cases under different facts where a building, or different parts of a building, would be considered as separate buildings, for some purposes, under the group of cases cited by appellant and before referred to, beginning with the case of Rhodes, Pegram & Co. v. McCormick, supra. We do not understand plaintiffs to dispute appellant’s proposition contained in the authorities last above cited by appellant, that blanket or joint liens may not be enforced when the contracts and the enterprise are separate. Was this structure one building, under one contract, or were they separate, as between these contending parties, — the plaintiffs on one hand, and the appellant and the contractor and subcontractors on the other? We turn to the record, and shall set out some of the more important matters bearing upon this question and related questions. It will be necessary to go into some detail, but we shall not attempt to set out herein all the different facts and circumstances. We may say, in passing, that, after reading the record, we are satisfied with the findings of the trial court as to disputed questions of fact, and we shall not herein go into the evidence thereon.
It appears that the plaintiffs, desirous of improving the four lots before referred to, by joining together in the erection of a building, entered into a written agreement between themselves to erect on the four lots a fireproof brick building, designed as a modem hotel. This contract is dated June 19, 1915, but
The first mechanics’ lien was filed March 14, 1916. Prior to paying the last estimate, plaintiffs obtained a confidential report on the contractor, which stated that the contractor was sound. No inference or rumor had come to them that it was not so, but the report was obtained to assure plaintiffs that the contractor was paying its bills. Extra work was done, and included in the estimates and paid. There were no changes or extras after the contractor abandoned the work. The evidence shows that the building was of reinforced concrete, built as one complete building; that the contractor, in constructing the building, used cement, sand, and other materials, and the labor, indiscriminately, wherever they were needed in the building, without reference to the lots underlying the building; that no attention was paid to which part of the building the materials went into; that the building was constructed no differently because of having been let in two contracts, than would it have been, had it been in one contract. On March 22, 1916, the architects issued to the owners their certificate as to the failure of the contractor to prosecute the work; and pursuant thereto, notice was served on the contractor, who never returned to the work, but soon after went into bankruptcy. The Bonding Company was notified, and they sent a representative to Ames, and he had a conference with the owners. The company refused to complete the building, when so requested by the owners. The Bonding Company’s representative said that the owners could complete the building more economically than could the Bonding Company, A second conference was held, at which the owners and their attorney and architects, were present, as were two representatives of the Bonding Company ; one of the representatives of the Bonding Company stated that the company waived its right to complete the contracts, and that they were willing to waive any technical right, to save delay. Thereupon, an arrangement was made with another contractor
Before coming to the point which we have said appellant most relies upon, we shall refer briefly to some of plaintiffs’ claims and authorities. It is first contended that, the Bonding Company being a paid surety, and in the business of furnishing bonds to parties, its obligation is to be strictly construed against it (citing Hileman & Gindt v. Faus, 178 Iowa 644; Streator C. M. Co. v. Henning-Vineyard Co., 176 Iowa 297; Van Buren County v. American Surety Co., 137 Iowa 490; City of Topeka v. Federal v. Surety Co., 213 Fed. 958; and other cases). They
1. The contract so provides, and was in accordance therewith, and with the certificates of the architects.
2. The evidence shows that plaintiffs paid the contractor, prior to its failure, said sum of money on these estimates.
3. Plaintiffs made no payments to the contractor, except upon written estimates, issued by the architects, and in strict accordance with the terms of the contracts.
They claim, also, that the court properly credited plaintiffs with the item of $15,318.47, the amount paid by them for material and l^bor in completing the building, after the contractor had defaulted, because:
1. The contractor defaulted, and abandoned its contract, and thereupon, in pursuance of the contract, the architects so certified, and that it was sufficient grounds for the termination of the employment of the contractor, and proper notice was served, as provided in the contract.
2. The contract provides that the expense incurred by the owners for finishing the work, and any damage incurred through such default, shall be audited and certified by the architects, whose certificate is conclusive.
3. The Surety Company refused to complete the building upon plaintiffs’ demand, after the contractor had defaulted.
4. The Bonding Company waived its right to complete the building, and knew of and consented to the arrangement by which plaintiffs completed it.
5. The undisputed evidence shows that plaintiffs paid said
6. The architects did audit and certify this amount as the cost of completion, and such certificates were not questioned or impeached, and are conclusive upon the parties.
Upon this proposition, they cite Farrell v. Levy, 139 App. Div. 790 (124 N. Y. Supp. 439); Shriner v. Craft, 166 Ala. 146 (139 Am. St. 19); Bavaria Inv. Co. v. Washington B., L. & S. P. Co., 82 Wash. 187 (144 Pac. 68); Handy v. Bliss, 204 Mass. 513 (90 N. E. 864); Lohr Bottling Co. v. Ferguson, 223 Ill. 88 (79 N. E. 35); Keachie v. Starkweather Drain. Dist., 168 Wis. 298 (170 N. W. 236); United States v. Gleason, 175 U. S. 588 (44 L. Ed. 284); Seim v. Krause, 13 S. D. 530 (83 N. W. 583); Ruch v. York, 233 Pa. 36 (81 Atl. 891); Kilmer v. United States, 48 Court of Claims 180; 6 Cyc. 40. They also claim that the court properly allowed the other items referred to and certified to by the architects, under the same authorities cited above. Plaintiffs’ next contention is that, in the accounting, and in fixing the rights and liabilities of the parties, the court properly credited the plaintiffs with the amount of the mechanics’ liens allowed against the property.
We think that the statutes in regard to mechanics’ liens allow a lien against the entire building, as a whole. Code Section 3089 provides that:
‘ ‘ Every person who shall do any labor upon, or furnish any materials, machinery or fixtures for, any building, erection or other improvement upon land * * * shall have for his labor done, or material, machinery or fixtures furnished, a lien upon such building, erection or improvement and upon the land belonging to such owner on which the same is situated * * * to secure payment for such labor done * * *”
Code Section 3090 provides that:
“The entire land upon which any such building, erection or other improvement is situated * * * shall be subject to all liens created by this chapter to the extent of the interest therein of the person for whose benefit such labor was done or things furnished.”
Code Section 3092 provides that:
“Every person, whether contractor or subcontractor, who
Section 3093, Code Supplement, 1913, in referring to subcontractors’ liens, refers to “any building or structure,” and to “building, structure, or improvement.” Lien statutes providing for a lien upon a building have quite generally been construed as creating a lien upon the entire building and property, and not upon a part of it. Menzel v. Tubbs, 51 Minn. 364 (53 N. W. 653, 17 L. R. A. 815).
It was said in Vilas v. McDonough Mfg. Co., 91 Wis. 607 (51 Am. St. 925, 928), that, where a lien is given on the building, there can be no lien upon details or constituent parts of the building. The greater includes the less. See, also, Ballou v. Black, 17 Neb. 389 (23 N. W. 3), 21 Neb. 131 (31 N. W. 673), a case involving a situation very similar to the case at bar. Such liens are not restricted to arbitrary and artificial lines, but include all the lots upon which the buildings or any part thereof are erected. So held in Doolittle & Gordon v. Plenz, 16 Neb. 153 (20 N. W. 116).
In Jones & Magee Lbr. Co. v. Murphy, 64 Iowa 165, Winkley made a contract for the construction of a house, and after-wards another contract to build a porch to the house. We said that it was not material that, in one sense, there were two jobs, “so long as there was but one building, and what was furnished for the porch was furnished for the building. * „ * * Where a single building is erected by one contractor, though, as often happens, under more than one contract, we think that it would be a great hardship upon the subcontractors to require them to take notice of, and bear in mind, at their peril, precisely where, ' in the construction of the building and use of material, one contract ends and the other begins.”
In Chambers v. Yarnall, 15 Pa. 265, it was held that the word “building” was applicable to a block which, though composed of sfeparate houses, is put up as a whole. That the word “building,” as used in the mechanics’ lien statute, includes several buildings, put up as a single piece of work, see Phillips v. Gilbert, 101 U. S. 721 (25 L. Ed. 833); Bowman Lbr. Co. v.
Although the contracts entered into between Sheldon and the contractor, and the Munns and the contractor, were, as between the parties, several, yet we think that, under the circumstances of this case, and the facts before referred to, the liability of the owners and of the building and of the contractor was a joint liability. Ballou v. Black, supra; Miller v. Shepard, 50 Minn. 268 (52 N. W. 894); and the sections of the statute before referred to.
The following eases and others are cited to the point that it was not incumbent upon the lien claimants to separate and divide their accounts and liens: The Ballou, Menzel, Miller, and Vilas cases, supra; Bastrup v. Prendergast, 179 Ill. 553 (53 N. E. 995); Premier Steel Co. v. McElwaine-Richards Co., 144 Ind. 614 (43 N. E. 876).; Lehmer v. Horton, 67 Neb. 574 (93 N. W. 964); Bowman Lbr. Co. v. Newton, 72 Iowa 90; Williams v. Judd-Wells Co., 91 Iowa 378; Jones & Magee Lbr. Co. v. Murphy, supra; Phillips v. Gilbert, 101 U. S. 721 (25 L. Ed. 833) ; and the sections of the Code before cited. And in Lewis v. Saylors, 73 Iowa 504, it was so held where the question as to the different materials used was a matter peculiarly within the knowledge of the contractor. Plaintiffs also cite Ware & Leland v. Heiss, 133 Iowa 285, Baldwin v. St. Louis, K. & N. W. R. Co., 75 Iowa 297, and other cases, to the proposition that the knowledge of the Bonding Company’s agent, who signed the bonds, was the knowledge of the company: that is, that there was to be but one building, and the arrangements generally. The principal contractor, in dealing with the subcontractors, let single and entire contracts, without requiring subcontractors’ accounts to be separated or divided, and the contractor did not keep separate accounts on the parts of the building, but
The Bonding Company, after the contractor defaulted, recognized that there was but one building, and that the contracts, while two in form, were in reality but one, when it consented to the completion of the building as an entirety, without keeping separate accounts of the material and labor that went into the building, over the lots of both plaintiffs. That was their practical interpretation, and a consideration of weight. Insurance Co. v. Duteher, 95 U. S. 269 (24 L. Ed. 410).
We do not think it necessary to cite cases in regard to the other items which were allowed by the trial court. The Bonding Company seems to make no serious contention in regard to them.
But, as said, it is not necessary to expressly decide the point, since, even though claimant did not come strictly within the rule above suggested, yet if it, in good faith, believed it did, its right to a lien will not be defeated by'reason of having made a mistake as to its legal rights, in the absence of any show
Contract $3,000.00
Extra, per order No. 2123 400.00
Credit for two checks, leaving a balance of $1,540.00 .
No claim is made in the statement for lien, or in the petition, that such labor as was claimed to have been performed after March 25th was under the contract, express or implied, with plaintiffs; and it appears that no attempt was made to show the amount of such services, or their value. The work which claimant alleges was done in April was work in the basement of the building, when they sent a man to Ames to do it. No one was performing work on this building for claimant at the time the man was so sent. There seems to have been work in changing some walls that were not right. Plaintiffs contend that work done after the cancellation of the contract' by the owners did not extend the time for filing of liens. They cite, in support of the proposition, Garrison G. & L. Co. v. Farmers Merc. Co., 181 Iowa 568, and Shorthill Co. v. Aetna Ind. Co., (Iowa) 124 N. W. 613 (unofficial).
However this may be, the evidence shows that the last material furnished or labor performed under the contract was prior to the 11th of February, 1916. The trial court so found, and -we adopt its finding. On March 31, 1916, this claimant wrote a letter to H. L. Munn Lumber Company, Ames, Iowa, stating that it had a balance due for work executed on the hotel 'job of $1,540, and that this was for work done to February 17th, and that most of it was due February 1st. The amount stated in the letter, $1,540, is exactly the amount of the balance given in the statement for mechanics’ lien. It is further contended by claimant that the owners of the building stood by, and accepted the labpr of the claimant, and that the owners are, therefore, estopped from setting up the claim that the lien was not
The opinion is long, and necessarily so. Though we have not gone into the details of every question on the several appeals, we are satisfied with the findings and decree of the district court on the several matters, and the judgments are affirmed on all appeals. — Affirmed.
Does not appear in official reports. Cause affirmed on rehearing by equally divided court.