157 Minn. 404 | Minn. | 1923
This is an action to foreclose.a mechanic’s lien and the contest is really between plaintiff and the general creditors of the Pettijohn Pure Products Company, which is now in the hands of a receiver. Appellants insist that plaintiff has no lien except for an inconsequential item, but in the district court plaintiff was allowed a lien for the full amount of its claim.
The Pettijohn Company formerly owned a considerable property on University avenue. On the rear of the tract were two old dwellings. In the center was an office and mill building and a detached garage. Fronting on University avenue was a detached store building. On December 6, 1920, plaintiff submitted to the Pettijohn Company two estimates covering lumber and millwork to be used in the enlargement of the mill building by the addition of a “Flake Plant.” That improvement was proceeded with for the Pettijohn Company by one Kirkland, a general contractor. Plaintiff’s two bids on materials, that is, the two estimates, were accepted and the materials purchased by and delivered to the Pettijohn Company accordingly. In addition to the merchandise covered by the estimates, there were upwards of 40 extras of the aggregate value of $1,870.
The materials were delivered beginning December 10, 1920, and ending May 26, 1921. On April 1 and April 4 were delivered the
On May 26, 1921, additional materials worth only $5.97,were ordered by the Pettijohn Company and delivered to it by plaintiff. It is conceded that as to that one item there is a right of lien. But it is contended that the lien right stops there; that this last purchase was a new and independent transaction in no way connected with the purchase of the material for the “Flake Plant,” and that it cannot be resorted to as a means of prolonging the lien right of plaintiff in connection with the material furnished for and used therein. The lien statement, of course, was filed within 90 days after the item of May 26,1921.
The lumber purchased on that day was procured by the Pettijohn Company and delivered to one of its employes authorized to receipt for it. It was used in making slight repairs upon the store building, the tenant of which was doing some or all of the work himself. But, so far as plaintiff is concerned, the sale of all of the materials (including the item of May 26), was one transaction continuous from beginning to end. Plaintiff had no knowledge that the items of April 1 and 4 were the last for the “Flake Plant.” If it had been so informed, it is fairly safe to assume that its lien statement would have been filed within 90 days thereafter.
But, passing that as a mere incident, plaintiff did not know on May 26, when the last materials were furnished, that they were not for the main improvement which had been in the making for many months. There is not a circumstance about that last transaction to indicate to plaintiff that the additional material was not another extra to go into the work contemplated by the original estimates of December 10, 1920. So far as plaintiff is concerned, we repeat, it was one transaction and continuous from that date to May 26, 1921. In that view of the case, the decision of it is controlled by John Paul Lumber Co. v. Hormel, 61 Minn. 303, 63 N. W. 718. There, the last
Appellants seek to distinguish that case because we have here no finding that the item of May 26 was furnished by plaintiff in the justifiable belief that''it was for the same improvement as the preceding items. True, the learned trial judge did not put his finding in just that form. But he did hold that all of the material, including the item of May 26, was furnished on one continuous account. That is the same thing, and of necessity imports the element of justifiable belief. That conclusion is irresistible because the “New Flake Plant” was the only work that plaintiff knew anything about.
In John Paul Lumber Co. v. Hormel, the vendor was excused for not knowing where the last item of his materials went because his mistake was one of fact. He was kept in ignorance by the purchaser whose conduct lulled him into the belief that all of the goods were going into the same improvement.
Fitzpatrick v. Ernst, 102 Minn. 195, 113 N. W. 4, presented a different situation. There the vendor felt that he had but one contract, whereas he had several with the same customer. Each contract stood by itself. > The plaintiff’s mistake was one of law rather than of fact, and, of course, he could not be protected from the results of such an error. The distinction between such a situation and the one presented by the instant case is obvious.
Returning for a moment to the facts, for 90 days after April 4, 1921, plaintiff had a lien which it might have protected by filing the statement. On May 26 additional materials were ordered. All
Order aflirmed.