Western Sash & Door Co. v. Heiman

80 P. 16 | Kan. | 1905

The opinion of the court was delivered by

William R. Smith, J.:

The difficulty in the way of a recovery by plaintiff below lies in the lien statement and notice. The Western Sash and Door Company stood in the relation of a subcontractor to the church trustees. It sold the material to Buckner. Its president so testified, and its counsel here concede the fact. To establish a valid lien it was required by law to bring itself squa-rely within the statute. That part of section 5119, General Statutes of 1901, relating to subcontractors’ liens, which is applicable to the case in hand reads:

“Any person who shall furnish any such material . . . under a subcontract with the contractor . . . may obtain a lien upon such land from the same time, in the same manner and to the same extent as the original contractor, for the amount due him for such material, ... by filing with the clerk of the district court of the county in which the land is situated, within sixty days after the date upon which material was last furnished . . . under such subcontract, a statement verified by affidavit, setting forth the amount due from the contractor to the claimant, and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant, and a description of the property upon which a lien is claimed; and by serving a notice in writing of the filing of such lien upon the owner of the land; . . . provided, that the owner of any land affected by such lien shall not thereby become liable to any claimant for any greater amount than he contracted to pay the original contractor; but the risk of all payments made to the original contractor shall be upon such owner until the expiration of the sixty days hereinbefore specified; and no owner shall be liable to an action by such, contractor until the expiration of said sixty days, and such owner may pay such subcontractor the amount due him'from such contractor for such labor and material, and the amount so paid shall be held and deemed a payment of said amount to the original contractor.”

A reference to the statement for a lien will show that it is defective as a subcontractor’s lien in that it recites that the contract for the sale of the material was made with the owner direct, the latter being assisted in the purchase by Buckner, the contractor. The word “contractor” appears but once in the lien statement, and" then as descriptio per sonsa of Buckner. The name of the owner is specifically set forth, also the name of the claimant, but the name of the contractor is .incidentally mentioned as descriptive of the person who helped the owners buy the material of the sash and door company. A copy of the lien, accompanied by the notice of its filing, was served on the church trustees. The statute provides that “the risk of all payments made to the original contractor shall be upon such owner until the expiration of the sixty days hereinbefore specified” — that is, from the date when the material was last furnished. No risk was incurred by payment to Buckner by the church trustees, because plaintiff does not assert in the lien or notice that Buckner was the “original contractor.” There seems to have been a studied purpose of the lien claimant not to place itself in the attitude of a subcontractor dealing alone with Buckner. It so phrased the lien statement that it might be available if the evidence showed it to be either the original contractor or a subcontractor.

In McIntyre v. Trautner, 63 Cal. 429, a case which is almost parallel in its facts to the present one, the lien notice contained a statement “that one George Scheibel was the name of the contractor who, ‘as such contractor and as agent for and on behalf of said Trautner (defendant), entered into a contract with said McIntyre (plaintiff), under and by which’ the work was done and materials furnished.” It was held that the words “as a contractor” were surplusage and did not “detract from the effect of the statement that Scheibel, in employing plaintiff, acted as agent for the defendant.” (See, also, Denver Hardware Co. v. Croke, 4 Colo. App. 530, 36 Pac. 624.)

The prayer of the petition is appropriate to an action brought by plaintiff below as an original contractor with the owner of the property. It asks for a personal judgment against Buckner and also against the church trustees. If the Western Sash and Door Company was a subcontractor it could not recover a personal judgment against the owner. (Hodgson v. Billson, 12 Kan. 568.)

When this case was here before (65 Kan. 5, 68 Pac. 1080) comment was made on the fact - that the lien statement showed that the material was sold by the sash and door company direct to the church corporation. The questions involved now were not decided, however, at the former hearing. The statement for a lien and the notice not being sufficient under our statute to fix a subcontractor’s claim on the church property, the judgment of the court below is affirmed.

All the Justices concurring.