10 S.D. 286 | S.D. | 1897
This was an action to foreclose a mechanic’s lien. The case was tried by the court without a jury, judgment was rendered in favor of the plaintiff, and from this judgment the defendants Samuel and Martin appeal. The only questions presented by the assignment of errors are that the complaint and findings do not support the judgment, and that there is a fatal variance between the complaint and findings of fact.
The proposal accepted, constituting the contract relied on, is as follows: “Mr. Ed. E. Samuels, Chicago, 111. — Dear Sir: I will complete the foundation for your mill site, including the moving of all earth and rock, well ditch and boxing, and bringing water into the mill, for §200.00. I will also put up and complete the mill in a substantial manner, including all manner of expense necessary with the material furnished me on the ground for §25.00 per thousand measured lumber after completion. For setting the machinery I will charge §5.00 per day. The mill is to be completed and entire, and the keys turned over to you, not later than six months from this date, ready for catching gold on the plates. Yours, truly, [Signed] C. A. Stokes.” “Accepted: [Signed] Ed. E. Samuels.”
The court found that the contract was made by Samuel on behalf of himself and Martin, and further found as follows: “(2) That, pursuant to said contract, the plaintiff performed and caused to be performed for said defendants, Ed. E. Samuel and J. M. Martin, between the 18th day of January, 1895, and the 3d day of May, 1895, the following work and labor, to wit: Labor on lumber put in mill, measured after completion, 59,394 feet, at §25 per thousand, §1,484,85. Grading foundation, etc., for mill, §200. 39 days’ labor personally performed by Chas. A. Stokes setting machinery in mill, at §5 per day, §195, 14f
Appellants further contend that the plaintiff lost his lien by reason of including items not proper in his claim "of lien. This contention is not tenable. The mistake of a lien claimant in including in his account items that should have been excluded does not affect his lien when the proper items can be separated from the improper ones. Lamont v. La Fevre (Mich.) 55 N. W. 687; McMonagle v. Wilson (Mich.) 61 N. W. 495; Dennis v. Smith (Minn.) 38 N. W. 695; North v. La Flesh (Wis.) 41 N. W. 633. In this case the items for which the plaintiff was en