127 Minn. 277 | Minn. | 1914
Defendant Morawetz entered into a contract with defendant Offrell for tbe construction of a building upon premises owned by
The cause comes to this court upon the findings, the evidence not being returned, and the question presented is whether the findings of fact support the conclusions of law. Whether the conclusions of law are so supported depends upon the question, with reference to which the facts are not in dispute, whether the second item of material above mentioned was lienable under the statutes. If it was not, the lien statement was not fixed in time and the lien fails. If it was the judgment must be affirmed. The facts are in brief as follows:
The building under construction was located in Liberty Heights, in Dakota county, and plaintiff’s place of business, dealer in lumber and building material, was at Minneapolis. In substance and effect the trial court found, in respect to the item of material in question, that on March 30, 1912, the contractor purchased of plaintiff and plaintiff sold and delivered to him for use in the construction of the building certain material of the value of $9.71; that the contractor ordered the material shipped to him from Minneapolis, and that in pursuance thereof plaintiff delivered the same to a common carrier consigned and to be shipped to the contractor at the place where the building was under construction; that no part of the material was delivered upon the premises or taken there by the contractor or any other person, and no part thereof was ever used in the construction of the building. What became of the material does not appear.
The contention of defendant is that as no part of the material was
Our statute, section 7020, G. S. 1913, provides that whoever contributes to tbe improvement of any real estate by furnishing labor or material for tbe construction of a building thereon, whether under contract with tbe owner, contractor or subcontractor, shall have a lien upon tbe premises for tbe value of tbe labor or material so furnished. Tbe statute, being remedial in character, has always received a liberal construction and application. Johnson v. Starrett, supra, p. 138, 149 N. W. 6; 2 Dunnell, Minn. Dig. § 6033. Similar statutes in other states have been construed strictly and tbe rule announced that there can be no lien for material furnished, unless it be actually incorporated in the building so as to form a part of the structure. Some of the authorities so holding are referred to by Mr. Justice Brown in the Johnson case, supra, and others, including those holding to the contrary, will be found in a note to Pittsburg Plate Glass Co. v. Leary (S. D.) 31 L.R.A.(N.S.) 746. But that rule of strict construction has never been applied in this state. On the contrary we have held that actual incorporation of the material into the building is not essential to the right of lien. Burns v. Sewell, 48 Minn. 425, 51 N. W. 224; Hickey v. Collom, 47 Minn. 565, 50 N. W. 918; Combination Steel & Iron Co. v. St. Paul City Ry. Co. 52 Minn. 203, 53 N. W. 1144. We have consistently followed this rule, and it is supported by the courts of other states having similar statutes. Whether a delivery of material upon the premises where the building is being constructed is essential to the right of lien has not heretofore been presented in a case between the owner of the property and the lien claimant. While such a delivery has been said in some of the opinions to be necessary, the question was not involved in the particular case, and the question is an open one in this state. The case of Wentworth v. Tubbs, 53 Minn. 388, 55 N. W. 543, presented a controversy between a lien claimant and a mortgagee, and involved the question whether the
In the case at bar the material was delivered to a carrier, consigned to the contractor at a place where the. building was under construction. The delivery to the carrier was a delivery to the contractor, and plaintiff was not required, in order to protect his lien rights, to accompany the shipment and see that the material was actually delivered upon the premises.
Judgment affirmed.