Boise-Payette Lumber Co. v. Felt ( 1927 )

Plaintiff had judgment in the trial court against defendants in the principal sum of $2,377.40 with interest amounting to $426.24, and attorney's fees in the sum of $300, and $1.50 fees for recording lien, amounting in all to $3,105.54, and by the judgment this amount was decreed a lien upon Lots 24, 25, 26 and 27 of Block 86, Twin Falls, Idaho.

Lots 24 and 25 were the community property of W.P. Rice and Mrs. W.P. Rice. Lot 26 was the property of C.M. Smith. Lot 27 was the property of appellant Mrs. C.M. Smith, wife of appellant, C.M. Smith. Appellant, Margaret Georgia Rice, executrix, has been substituted for W.P. Rice, deceased. Appellant, Earl Felt, is a building contractor, and contracted with the owners for the construction of the improvements involved, and purchased the materials on account of which this suit was brought.

In this case we find no conflict in the evidence. It is, as we view it, entirely a question of law growing out of business relations among the parties to the action.

In 1912, a two-story brick building was erected by C.M. Smith and W.P. Rice on the center lots, 25 and 26. The ground floor was occupied by business firms, and the second floor consisted of a hall, known as Cotillion Hall. There were offices in the front part of the building and a common entrance, in about the center of the building, lead to the second floor.

In 1913 Mrs. Smith improved her lot, 27, by constructing a two-story building upon it. The ground floor was occupied by the United Stores Company. The second floor was occupied with offices. The central entrance and hallway in the Cotillion Building were used by her tenants.

In 1914 a two-story building was constructed by Mr. Rice on Lot 24. The second floor was apportioned and used very much the same as Mrs. Smith's.

In 1920 a fire destroyed the upper story of all these buildings. Plans were prepared by an architect for their replacement. The old plan of the second floor was somewhat altered by the new one. The change consisted principally in eliminating Cotillion Hall and occupying that space with offices. The reconstruction was by contract and bids therefor were asked by the architect. In this behalf, Mr. Felt, one of the appellants, and the contractor for the reconstruction, testified:

"I entered into, the way I understood it, three different contracts; the architect, in calling for bids, asked for three different bids; one was on one part of the building, another on another part of the building, and another bid was on a third part of the building, as I understood it, on account of the different ownerships; . . . . Approximately, the work on the Cotillion Hall building amounted to about $7000, and the work for Mr. Smith on the building to the right about $3000, approximately, and the work for Mr. Rice on the building to the left, approximately $4000."

After entering into these contracts Mr. Felt submitted an estimate of the materials needed for the whole work to the lumber company as one job, and the latter gave him a lump sum price which was agreed to. The contractor paid $3,055.55 on the material account, leaving an unpaid balance of $2,377.40. The lumber company claimed and filed notice of lien in a lump sum against all the owners, and against all the property as one building. This action is for the foreclosure of that lien claim.

In effect, by the second and fourth assignments, appellants specify as error the finding and holding by the court that the owners were bound by the contract made between the contractor and the lumber company; and failing to find that the improvements were made under three separate contracts between the contractor and the different owners respectively.

Upon examination of the record, we think the trial court disregarded the nature and effect of the contract between the respective owners and the contractor, and held all the owners liable to the lumber company under the lien law in the entire amount by virtue of the contractor purchasing his materials for this work in a lump amount, and the material being used in what might be considered a single building.

C. S., sec. 7339, so far as applicable here, provides:

"Every person . . . . furnishing materials to be used in the construction, alteration or repair of any . . . . building . . . . or any other structure . . . . has a lien upon the same for the work and labor done, whether done or furnished at the instance of the owner of the building or other improvement or his agent; and every contractor, subcontractor, architect, builder or any person having charge . . . . of the construction, alteration and repair, either in whole or in part . . . . shall be held to be the agent of the owner for the purpose of this chapter."

The only authority to charge the owner and the property, under the lien law, for materials purchased by the contractor, is under this section. The nature and the extent of the contractor's authority under this section was before this court in Valley Lumber Co. v. Nickerson, 13 Idaho 682, 93 P. 24, wherein it was held that the agency was a limited one only authorizing the purchase of, and creating a lien for materials reasonably necessary for the owner's building. In this connection, Ailshie, C.J., at p. 691, said:

"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 contractor is a special agent for this purpose only, and the materialman must take notice of the limitations of the agency. It extends only to the purchase of material reasonably necessary out of which to build the structure in accordance with contract entered into between the owner and the builder."

So far as we can ascertain, the authorities are in accord with this view, and especially so when separate ownerships are involved as in this case. Valley Lumber Co. v. Driessel,13 Idaho 662, 13 Ann. Cas. 63, 93 P. 765, 15 L.R.A., N.S., 299, is not in point, for in that case there were no separate ownerships or different contracting parties. The reported cases hold without exception that in cases like this the contract pursuant to which the improvement is made is the controlling matter in determining what the lien may cover, not the architectural features of the structure or the manner in which the contractor purchased his materials. That is to say, where several owners jointly, as a whole, contract for the construction of detached or semi-detached houses or blocks on their several lots, the lien may follow the contract and attach to the property in common, that is, as a whole, just as the owners contracted. On the other hand, if the owners contract for the construction on their properties separately, then the lien will follow the contract and treat the construction in severalty and attach to the different parts separately for the materials used in such parts only. (Phillips v. Gilbert,101 U.S. 721, 25 L. ed. 833; Badger Lbr. Co. v. Stepp, 157 Mo. 366,57 S.W. 1059, 30 L.R.A., N.S., 1219; Beach v. Stamper,40 Or. 4, 102 Am. St. 497, 74 P. 208; Crane Co. v. Erie HeatingCo., 57 Or. 410, 112 P. 430; Stoltz v. Hurd, 20 N.D. 412, Ann. Cas. 1912C, 871, 128 N.W. 115, 18 Rawle C. L. 950, sec. 88, and cases cited; 40 C. J. 279, sec. 349, and cases cited.)

It appears that Mr. Smith represented his wife in treating with the contractor, but we think that a matter of no consequence under the rule. Her bid and contract were separate.

We conclude that the record discloses without conflict in the evidence that the contracts entered into by the owners for the construction were in severalty for the different portions, and therefore the contractor had no power, directly or indirectly, to bind Mrs. Smith or her property for material going into the central portion of the building or into the Rice property; and by the same reasoning, he had no power to bind Mr. Rice or his property for material used in the Smith property, or to bind the central portion for material going into Mrs. Smith's property. We think respondent was not entitled to a blanket lien.

As this view, under the foregoing assignments, disposes of the case, we deem it unnecessary to discuss the other assignments.

We recommend that the judgment be reversed as to appellants, Mrs. C.M. Smith, Mr. C.M. Smith, Mrs. W.P. Rice and Margaret Georgia Rice, executrix, and the complaint and the claim of lien against their said property be dismissed as adjudicated; and that the judgment, upon being modified by striking the item of $300 for attorney's fees and $1.50 for recording lien, be affirmed as to appellant, Earl Felt, in the sum of $2,803.64. Costs to appellants.

Varian and Brinck, CC., concur.

The foregoing is approved as the opinion of the court.

Wm. E. Lee, C.J., and Givens, Taylor and T. Bailey Lee, JJ., concur.

Petition for rehearing denied.