93 P. 24 | Idaho | 1907
The plaintiff, the Valley Lumber Company, a corporation, furnished to the defendant, Hugh Morrison, who was the original contractor in the construction of a building for the defendant Nickerson, lumber and material necessary for the construction of the building. It is. alleged by the complaint that the material was furnished and delivered at the premises between the twenty-seventh day of February, 1905, and the thirty-first day of May of the same year. The lien was filed on July 28th, following. The lien was therefore filed fifty-eight days after the date on which it is alleged the last material was furnished.
The complaint is in the usual form for the foreclosure of a materialman’s lien, with the exception of paragraph 1 thereof, which alleges plaintiff’s corporate existence, and is as follows: ‘ ‘ That the plaintiff is, and was at all times hereinafter mentioned, a corporation organized and existing under and by virtue of the laws of the state of "Washington, with its principal place of business at Clarkston, Washington, and doing business at Lewiston, Nez Perce County, Idaho. ’ ’ The defendants demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled and defendants thereupon answered. The answer did not put in issue the corporate existence of the plaintiff, nor did it contain any allegation touching the plaintiff’s compliance with the foreign corporation laws of this state.
At the trial the plaintiff introduced a certified copy of its-articles, together with a certificate showing that the same had been filed with the county recorder of Nez Perce county, and also a certificate showing that it had filed a designation of an agent, but it did not go further and show that it had made its filings with the secretary of state. Defendant’s attorney objected'to the evidence as immaterial and outside of the issue. The defendants failed, however, to raise the question either by demurrer or answer and must be deemed to have waived it. In Talley Lumber & Mfg. Co. v. Driessel, ante, p. 662, 93 Pac. 765, just decided, we have held that it is necessary for a foreign corporation commencing an action in.
Passing now to a more serious question in this case: Appellants contend that the company has no valid lien, for the reason that it did not file its claim of lien within sixty days after the completion of the building or the furnishing of the last item of material. If appellant’s contention is correct on that point,-our determination of that assignment of error will dispose of this appeal. The evidence On this point is' rather brief. Morrison, the contractor, testifies that “the building was finished sixty days before that (May 31st) and they were living in the house.” Nickerson moved into the house on May 11th, and Morrison further states that the house had been completed before Nickerson moved in, and the lumber and material had been cleared away from about the house prior to that time, and unused material had been returned and credited on the bill. He further testifies that he notified the plaintiff of the completion of the building, and that the owner had moved in, and that thereupon the company furnished him with an itemized statement of the material that had’ been used in the building, and that he checked over the list with the company’s secretary and they made some corrections in the account, and upon the trial he produced this itemized statement, and it was introduced in evidence as defendant’s exhibit “A.” Plaintiff had attached to its complaint what purported to be an itemized statement of the material furnished, and had it marked exhibit “A.” When the contractor was on the witness-stand, the plaintiff’s attorney asked him a number of questions about the account as shown on exhibit “A,” and the de
“May 31, 20 ft. ceiling......................40”
This item does not appear on the defendants’ exhibit “A.” The last entry in each of the exhibits prior to this one of May 31st is the same, having been made of date May 1st. This latter entry is the last item appearing on defendant’s exhibit “A.” The contractor was on the witness-stand, but at no time did he state that he ever did any work of any kind on the building or placed any material therein after the owner moved in. On the contrary, he stated that he had never seen any statement containing this charge of May 31st until he was called as a witness. The plaintiff, in its endeavor to establish the fact that the forty cent item of May 31st was furnished and delivered for this building, introduced its yardmaster’s book, which contains the following entry:
“May 31st, Nickerson’s
20 ft. Bead Ceiling Frank
20 ft. 1x2 stop.”
and follows that by proof of the following entry in the office books of the plaintiff corporation:
“May 31, 1905, for Hugh Morrison
Delivered at Nickerson Teamster Frank
20 ft. No. 2 cedar ceiling, .40”
The question of trivial work or a slight change or improvement by the contractor not being sufficient to extend the time for filing °a lien, does not require our consideration in this case. Here the claimant has failed to establish the essential fact that it filed the lien “within sixty days after .... it ceased to furnish material.” The “20 ft. bead Ceiling” item for which the forty cent charge is made is not sufficiently established to extend the time for filing the lien. Plaintiff’s counsel, with commendable zeal and much ability, has presented this phase of the case in the most favorable light possible for his client, but the lumber company has failed to furnish him with evidence to establish its contention or show it in time in preferring its lien.
In this case the owner paid the contractor for the job and the latter failed and was unable to pay the company for the lumber used. Considerable time is consumed by appellants’ counsel in arguing the proposition that it is incumbent on a materialman to show that the material furnished was not only “to be used in the building” but that it was actually used. Section 1 of the Mechanic’s Lien Law of February 7, 1899, is the same as section 3669 of Hill’s Annotated Laws of Oregon, and the point under consideration here was considered by Chief Justice Moore in Fitch v. Howitt, 32 Or. 396, 52 Pac. 192, and the following conclusion was reached: “The contractor, being in the nature of a special agent of the owner, with limited power, has authority to bind the property benefited for the payment of the reasonable value of such material only as is ordinarily sufficient to properly construct the building in accordance with the plans and specifications thereof, or in pursuance of the agreement entered into between the owner and the contractor.” By section 1 of our lien law, the “contractor .... shall be held to be the agent of the owner for the purposes of this chapter.” The eon-
Appellants complain of what they contend was a failure on the part of the plaintiff to establish at the trial that the material furnished was necessary for, or was used in, or was to be used in this particular building. Morrison, the contractor, testified that he was engaged on about six buildings at the time he was at work on this contract, and that he used the Nickerson building as a central point of supply, and that he moved lumber from that place to other buildings as he might need it instead of returning it to the lumber-yard. Plaintiff’s yards were in Clarkston, state of Washington, while this building and all the others on which Morrison was then engaged were in Lewiston in this state. Since a new trial must be had in this case, the parties can produce their proofs as to the amount of material that was to be used in this building that was reasonably necessary for it, and it will be unnecessary for us to further consider that point here.
The judgment must be reversed and a new trial will be granted. The plaintiff will be entitled to a judgment against the contractor for whatever amount may be found due from him to it. We assume from what we gather from the record that there is no reason for a new trial as to the lien, but since a new trial must be had, it may be on the whole case, and if the plaintiff should conclude that it has evidence to establish its lien within the purview of the law as herein construed, it may again be heard on that issue. Judgment is reversed and a new trial granted. Costs awarded in favor of appellants.