Chicago Lumber Co. v. Osborn , 40 Kan. 168 ( 1888 )

The opinion of the court was delivered by

JohNSTÓN, J.:

It seems to us that the petition was sufficient, and that the demurrer thereto should have been overruled. No argument or appearance has been made here in behalf of the defendants, and we can only learn what the objections to the petition, or what the grounds for the ‘.court's decision holding it insufficient, are, from the brief of plaintiff's counsel. It thus appears that the validity of the statement filed for a lien was the subject of doubt and controversy in the court below. The objections seem to have been that the statement did not sufficiently describe the owner of the property, and incidentally that Osborn was not such an owner as would subject the property to a lien; that it did not sufficiently set forth the name of the contractor and claimant; that it was not signed by the claimant; and that the verification was insufficient.

The first objection is without force. The first clause of the statement definitely names the owner, and further down in the statement it is alleged that the contract for the material was entered into between the claimant and said owner. This is and has been held a sufficient compliance with the statute in respect to setting out the name of the owner. (Deatherage v. Woods, 37 Kas. 59.) That the defendant Osborn was an owner within the meaning of the statute, and could subject his interest in the property to a lien, there is no doubt. The petition avers that he was in possession under a deed of indenture granting and conveying to him “ the right of occupancy and possession to the said laud and premises, and also being in the nature of a covenant or bond to grant said L. F. Osborn a warranty deed to said land, and granting to said L. F. Osborn the equitable redemption to said land from any prior liens then existing.” The statute does not admit of so narrow an interpretation, that the term “owner” includes only the holder of the fee. Indeed, this court has ruled that one holding a leasehold estate may be deemed to be the owner, and may create a lien thereon. (Hathaway v. Davis, 32 Kas. 693.) Osborn held an equitable interest, and one which was capable of sale upon execution, which is one of the tests to determine whether the interest may be charged with a mechanics’ lien. The owner of the fee had granted him the possession of the property, and had covenanted to convey the absolute title, without any conditions to be performed by Osborn, so far as the petition shows. It is generally held that a party in possession under a contract of purchase, and who is to be invested with full title upon compliance with certain conditions, is regarded as an owner under the mechanics’-lien laws. (Phillips on Mechanics’ Liens, § 69.)

The contractors and claimants were designated in the statement as the Chicago Lumber Company; and this we think is sufficiently explicit. They were partners, and the name employed was the partnership name, under which they carried on the lumber business and by which they were known. This effects the purpose of the statute, and the mention of the individual members composing the firm is not required. (Phillips on Mechanics’ Liens, §§346, 348.)

The objection that the statement is insufficient because it was not signed by the claimant cannot be sustained, and is answered in the case of Deatherage v. Woods, supra.

The final objection is, that the verification of the statement is not sufficient. It is not verified by the claimants, or any member of the firm, but was sworn to by Jos. M. Eck, who signed the same in behalf of the claimants as manager. The statute does not prescribe by whom the verification shall be made, but it has been held that a verification by an agent satisfies the statutory requirement, and certainly the word “manager” denotes agency as clearly as if the term “agent” had been used. (Delahay v. Goldie, 17 Kas. 263.) The verification was signed “Jos. M. Eck, manager claimant.” It would have been more certain and satisfactory if the preposition “of” or “for” had preceded the word “claimant,” but no one could be misled by the omission. The claim was made in behalf of the Chicago Lumber Company, and is presented and verified by Jos. M. Eck, who signs himself as manager.

Attached to the statement and made a part thereof is the bill of items purchased by Osborn from the Chicago Lumber Company, and which is signed by Eck as manager. It is obvious that the word “of” or “for” was accidentally omitted; but that Eck was the manager for claimant is almost as clearly implied and well understood, when the whole instrument is taken together, as if the omission had not occurred.

These are all the objections to which our attention has been called; but none of them can be sustained, and we therefore hold the petition to be sufficient, and that the order sustaining the demurrer should be reversed.

All the Justices concurring.