24 Haw. 181 | Haw. | 1918
Plaintiff in error, Wong Wong, hereinafter called the plaintiff, commenced this action against the defendants in error, the Honolulu Skating Rink, Limited, a corporation, hereinafter called the corporation defendant, and Morris Rosenbledt and Fred Harrison, hereinafter called the defendants, to obtain a personal judgment against said corporation defendant for moneys claimed to be due for labor and material furnished and used in the erection of a certain building in Honolulu upon certain described premises, and a lien against said building and premises for the amount claimed. At the trial below the plaintiff offered in evidence a notice of lien with bill of particulars thereto attached, which the trial court refused to admit in evidence against the defendants Rosenbledt and Harrison but admitted in evidence against the corporation defendant. As the cause seems to have been decided principally upon the ruling of the trial court that the notice of lien was insufficient, and, owing to certain omissions, void, and that no lien attached to the premises, we here give the said notice of lien held by the trial court to be insufficient, omitting the description of the premises, to wit:
“Notice is hereby given to all whom it may concern:
“That Wong Wong, of the City and County of Honolulu, Territory of Hawaii, claims a lien under Chapter 140, Sections 2173 — 2178, of the Revised Laws of Hawaii, 1905, as amended by Act 97 of the Session Laws of 1909, for the price agreed to be paid for labor and material furnished to be used and used in the construction of a certain building and structures situated upon the premises hereinafter described (which price does not exceed the value and is the value of said labor and material), upon such building and structures, as well as upon the interest of*183 the Owners of said building and structures in the land upon which the same is situated:
“That the amount of the claim for labor and material so furnished is the sum of Seven Thousand Thirteen and 60/100 Dollars ($7,013.60), being the balance due for the price agreed to be paid for such labor and material so furnished to the Honolulu Skating Rink, Limited, for said building and structures and used in the construction of the same, all of which is shown by the itemized account hereto annexed, marked ‘Exhibit A,’ and made a part hereof; that no part of said amount has been paid, excepting the sum of Two Thousand Four Hundred Seventy Dollars ($2,470), and that the balance, namely, the sum of Four Thousand Five Hundred Forty-three and 60/100 Dollars ($4,543.60) is due, owing and unpaid to said Wong Wong, and for this amount he claims a lien; said labor and building material including all the work in the erecting and completing of a one-story building to be used as a skating rink on the hereafter described premises and incident thereto and all scaffolding, implements and cartage necessary for the performance of said work, and also for the labor and building material, including lumber and hardware, for the extra work set out in said ‘Exhibit A’ and described therein.
“That the property upon which said building and structures have been constructed is described as follows: * * *
“That the names of the Owners of said land, building and structures are said Morris Kosenbledt and Fred Harrison;
“That the said Honolulu Skating Rink, Limited, a Hawaiian corporation, is the lessee of said premises under a lease for five (5) years dated the 21st day of September, 1914, and recorded in the Registry Office in Book 403 page 376, and in said leasehold contracted with said Owners to cause said building and structures to be erected, and, when erected, to become a part of the premises and owned by said Owners, and this lien is claimed against the interest in said land and buildings of said Morris Kosenbledt, Fred Harrison and the Honolulu Skating*184 Rink, Limited, to secure said sum of Four Thousand Five Hundred Forty-three and 60/100 Dollars ($4,543.60) ;
“That the said Honolulu Skating Rink, Limited, contracted for said material and labor and for the construction of said building and structures by said Wong Wong, and at their instance and request the said labor and material was furnished by said Wong Wong, for which the aforesaid lien is claimed; that- said material and labor were furnished between the 21st day of September and the 2nd day of November, 1914, in the construction of said building and structures, and the same were completed on the 2nd day of November, 1914.
“Dated, Honolulu, December 11, 1914.”
This notice of lien was verified by the plaintiff, filed in the office of the circuit court of the first circuit, and copy thereof served upon all of the defendants. The plaintiff identified and offered in evidence a building contract for the erection of said building at the stated cost price of $6463.60, signed by plaintiff and the defendant corporation; specifications for the same; evidence that certain additions agreed to by the plaintiff, the defendant corporation and the supervising architect were made, and the certificates of .the architect showing the completion and acceptance of the building under the contract and the completion of the additions or alterations thereto and the value of the same aggregating tlie total sum of $7013.60, all of which the trial court refused to admit against the defendants Rosenbledt and Harrison but admitted as against the defendant corporation. At the close of the hearing the defendants Rosenbledt and Harrison moved for judgment of nonsuit mainly on the ground that the notice of lien did not contain a description of the labor and material used in the construction of the building and did not state the amount for which the lien is claimed and therefore was not and is not such notice of lien as is required by the statute. The motion for nonsuit was
We will first consider the sufficiency of the notice of lien. It is better practice to state in the notice of lien the particular description of the labor and material used in the construction' of the building upon which the lien Avas claimed but our statute does not require a bill of particulars to be filed with the notice of lien. Section 2863 R. L. proAldes that “Any person * * * furnishing labor or material to be used in the construction or repair of any building * * * shall have a lien for the price agreed to be paid for such labor and material * * * upon such building * * * as well as upon the interest of the owner of such building * * * in the land upon which the same is situated.” Section 2864 R. L., among other things, provides that the “notice shall set forth the amount of the claim, the labor or material furnished, a description of the property sufficient to identify the same, and any other matter necessary to a clear understanding of the same.” Tested by these provisions did the notice of lien answer the objects and purposes of the statute? The amount of the lien claimed for labor and material is stated to be $7013.60, the price agreed to be paid for such labor and material, upon which payments to the extent of $2470 have been made, leaving a balance of $4543.60, and the exhibit attached to the notice of lien shows the contract price for the building to be $6463.60, and additional labor and material not coAmred by the contract price, but authorized by the contract, to the extent of $550. The bill of particulars is as follows:
*186 “Honolulu, T. H., Dec. 5th, 1914.
“Honolulu Skating Rink, Limited,
“To Wong Wong Dr.
“Dealer in
“Hardware, Painting Material, Windows & Doors.
“Maunakea St.
Contract price for building...... 6463.60
Extra Seats.................... 100.00
Surfacing Vestibule ............ 20.00
Increasing height of bldg. 4'...... 300.00
Stair.......................... 15.00
Extra Leader.................. 5.00
Extra Door ................... 8.00
Extra 3-piece Steps............. 9.00
Lifting Seats .................. 20.00
Extra Sleeper under Floor....... 20.00
Carbolinium ................... 9.00
Labor laying carbolinium....... 6.00
Carpenter labor (putting shoes on joists) ..................... 30.00
Ticket Platform................ 8.00
$7013.60
Less Cash on a/c from Nov 9th to Dec 8th, 1914 inclusive paid to Lewers & Cooke, Ltd. 2470.00
$4543.60”
The notice of the lien with the exhibit attached as a part thereof shows that the building had been erected at the contract price of $6463.60, the price to he paid for labor and material by the contract owner, and items by way of extras, additions or alterations to- the building to the extent in value of $550. The notice states that the claim includes “all the work in the erecting and completing of a one-story building to he used as ai skating rink on the hereafter described premises and incident thereto and all scaffolding, implements and cartage necessary for
It is urged on the part of defendants Rosenbledt and Harrison that as no demand was made upon said defendants after the filing of the notice of lien and before the commencement of this action that their property cannot be bound for a lien claimed by plaintiff. We have held that the statute requires demand on the owner after the notice of lien is filed and prior to commencing action for its enforcement (Lowers & Cooke v. Fernandes, 23 Haw. 744; Lowers & Cooke v. Wong Wong, 24 Haw. 39). The evidence shows that demand was made by the plaintiff upon the corporation defendant but not upon the defendants Rosenbledt and Harrison after the notice of lien was filed and before this action was commenced. The defendants having engaged in a joint and mutual enterprise, their interests being correlated, we think that they should be regarded in the light of joint obligors, not so far as personal liability is concerned, but so far as their interest in the property involved is affected by plaintiff’s lien. It has been held that one joint obligor is the agent for his co-obligors and may bind his co-obligors by a new promise on the joint obligation. Macaulay v. Schurmann, 22 Haw. 140. By analogy the same rule should apply here owing to the mutuality of the interest in the building upon which the lien is claimed by plaintiff. But irrespective of that view the defendants Rosenbledt and Harrison are bound by the demand made upon the defendant corporation owing to the limited relation of principal and agency
The judgment of nonsuit entered against the plaintiff as to the defendants Rosenbledt and Harrison is reversed and the cause is remanded to the circuit court for further proceedings consistent with the views herein expressed.