146 Minn. 156 | Minn. | 1920
This .is an appeal from an order denying defendants a new trial of an action to foreclose a mechanic’s lien. Two questions are presented: The first is whether certain storm sash were furnished under the original contract for the construction of a dwelling house or under a new aad independent contract; and the second concerns the application of payments.
When the owner determines to add something to the building after its construction has been completed and it has been delivered and accepted, materials furnished to the contractor to make the addition and not to accomplish the general purpose of the original contract are considered to be furnished, under a new and independent contract. Frankoviz v. Smith, 34 Minn. 403, 26 N. W. 225; Fitzpatrick v. Ernst, 102 Minn. 195, 113 N. W. 4; N. W. L. & W. Co. v. Parker, 118 Minn. 211, 136 N. W. 855; Paine & Nixon Co. v. Dahlvick, 136 Minn. 57, 161 N. W. 257.
Plaintiff relies on Heimbach Lumber Co. v. Spear, 140 Minn. 276, 167 N. W. 1041, contending that it is decisive of the question now under consideration. We are unable to agree with counsel that it is. It appears from the record in that case that the contractor testified that he -had finished the job when the owner moved in, except for the door referred to in the opinion; that the -house was not finally accepted and he did not get a final settlement with the owner until some time
John Paul Lumber Co. v. Hormel, 61 Minn. 303, 63 N. W. 718, is not in point, for the reason that the storm sash were not furnished by plaintiff to Mrs. Condon or her agent or servant, or charged to her account.
That the original contract between Elmer and Mrs. Condon was fully performed prior to September 5 cannot be disputed. Mrs. Condon testified that nearly two months later she decided to make the sun porch more a part of her house than an outside porch and to furnish it differently. This was an afterthought. The storm sash were furnished for a purpose not contemplated while the house was under construction or before it was accepted, and the time for filing the lien statement to preserve the lien for the materials originally furnished was not extended by furnishing them under the circumstances above stated. Elmer was not Mrs. Condon’s agent to order them, but an independent contractor. Plaintiff may have relied upon his statement that the storm sash were extras for her house, but its officers had seen the specifications and were chargeable with notice that these sash were not included in the original contract. As was remarked in Lundell v. Ahlman, 53 Minn. 57, 54 N. W. 936, storm sash are a proper part of a well constructed house in this climate, and, if they were delivered to construct and complete Mrs. Condon’s house under circumstances similar to those in the case cited, they might properly be held to belong in the same account with the other materials furnished by plaintiff.
But here there was no express agreement that plaintiff should furnish any mill work not included in the specifications. Such an agreement may be implied from circumstances, Coughlan v. Longini, 77 Minn. 514, 80 N. W. 695, but not under the circumstances disclosed by the record. As the record stands, we are unable to find sufficient evidence
We note that Mrs. Condon’s answer consists of a general denial and an allegation that she has paid Elmer in full for everything furnished for the construction of her house. Elmer’s answer alleges that he has paid plaintiff, for all the materials it furnished for the construction of the house, except the storm sash on the sun porch, and that they were furnished under a new and independent agreement made after ■the house was completed and accepted. It is nowhere alleged that Elmer directed plaintiff to apply his payments upon a particular account, or that the payments were made with money received from Mrs. Condon, or that plaintiff had any knowledge as to the source from which the money was obtained, but, by the apparent consent of both parties, considerable evidence was received bearing upon these questions. The court has made no findings respecting them. The evidence is conflicting and would support a finding in favor of the contention of either party. We think that, notwithstanding the state of the pleadings, the conduct of the trial resulted in issues being raised and litigated by consent which should have been covered by the findings. The briefs contain an extended discussion of the law relating to the questions above referred to. In the absence of findings, we are not called upon to state the rules of law which may be applicable. For an abstract statement of .them see Jefferson v. Church of St. Matthew, 41 Minn. 392, 43 N. W. 74, followed in Miller v. Shepard, 50 Minn. 268, 52 N. W. 894, and American Bridge Co. v. Honstain, 113 Minn. 16, 128 N. W. 1014, and for a review of the conflicting decisions see Sioux City F. & Mnfg. Co. v. Merten, 174 Iowa, 332, 156 N. W. 367, L.R.A. 1916D, 1247-1254.
The order denying a new trial is reversed and a new trial granted.