Figgins v. Stevenson , 163 Mont. 425 ( 1973 )

No. 12563
IN THE SUPREME COURT OF THE STATE OF MONTANA
1973
WILLIE FIGGINS, d/b/a
FIGGINS & SON EXCAVATING,
Plaintiffs and Respondents,
LESLIE B. STEVENSON and
MARILYN R. STEVENSON,
husband and wife,
Defendants and Appellants.
Appeal from: District Court of the Eighteenth Judicial District,
Honorable W. W. Lessley, Judge presiding.
Counsel of Record :
For Appellants :
Bennett and Bennett, Bozeman, Montana
Lyman Bennett, 111 argued, Bozeman, Montana
For Respondents:
Bolinger and Wellcome, Bozeman, Montana
Page Wellcome argued, Bozeman, Montana
Submitted : December 4, 1973
Decided : D j r ~ 8 1973
Mr. Justice Wesley Castles delivered the Opinion of the Court.
This is an appeal from a judgment for plaintiff entered
after findings of fact and conclusions of law were made by the
court sitting without a jury. Trial was had in Gallatin County,
the Hon. W. W. Lessley presiding. The judgment was in the amount
of $12,175.75, plus interest at 6% from July 1, 1972, and for
attorney fees in the amount of $2,435.15.
The case involves foreclosure of a mechanic's lien by
the plaintiff, respondent and cross-appellant, upon campground
premises owned by defendants, appellants. On April 20, 1972,
plaintiff, Willie Figgins, d/b/a Figgins & Son Excavating, enter-
ed into a written contract with defendants Leslie B. Stevenson
and Marilyn R. Stevenson, for the construction of a United Camp-
ground near Bozeman. Hereinafter the parties will be referred
to as Figgins and Stevenson.
The contract was for a fixed price of $19,474.75 and
included waterline excavation and backfilling, powerline digging
and backfilling, road blading, gravel and a lagoon. Separate
contractors were, under separate contracts, to do plumbing, elec-
trical and building so that completion of Figgins' work was de-
pendent on completion by the other contractors. The sewage
lagoon, covered by the contract, was deleted deducting an amount
of $5,800 from the fixed price leaving a balance of $13,674.75.
The contract provided that work was to commence as soon
as the ground was unfrozen. It then provided in pertinent part:
"If the work is not substantially completed on
May 27, 1972, then the Contractor shall be charged
liquidated damages in the amount of $50.00 per
day for each and every day that the completion
date exceeds May 27, 1972.
"The Contractor acknowledges that the Owner is
relying upon the above stated completion date
as a material inducement for his entering into
this Contract. I'
Then as to payment the contract provides:
"Final payment
"Final payment, constituting the entire unpaid
balance of the Contract Sum, shall be paid
by the Owner to the Contractor ten (10) days
after Substantial Completion of the Work, pro-
vided the work has then been completed, the
Contract fully performed, and a final Certifi-
cate for Payment has been issued by the * * *
Owner. Final payment will be made as provided
for hereinabove provided the Contractor furnishes
the Owner with a mechanic's lien waiver for all
labor and materials furnished the project by the
Contractor and his suppliers."
Under miscellaneous provisions are two other pertinent provisions
in the contract:
"8.3 The actual staking of the road, roadways,
waterlines, sewer line, electrical line, lagoon
location and septic location shall be done by
Survo, Inc. (formerly Earl R. Best & Associates)
on or before April 15, 1972.
"8.5 The Contractor shall not be responsible
for any liquidated damages as provided herein
if there is any delay resulting from the staking
of roads, and lines (defined herein) or result
from the delay of other subcontractors failure
to cooperate with the Contractor herein."
The contract was prepared by Stevenson through his lawyer
in Minnesota. It was a printed standard form of agreement between
owner and contractor with certain items stricken and other items
typed in.
On August 3, 1972, Figgins filed a lien against Steven-
son's property in the amount of $14,019.75 for labor, equipment
and materials. On August 10, 1972, a complaint to foreclose
the lien was filed. Pursuant to section 45-513, R.C.M. 1947,
Stevenson filed a cash bond as a substitute and had the lien
discharged. The suit continued against the bond. On September
19, 1972, an answer was filed, alleging that Figgins failed to
complete the work on time, and counterclaimed, alleging that a
breach of the contract in failing to complete the work on time
resulted in loss of rentals and damage in an amount of $4,000;
and further, that Figgins' negligence caused damage to Steven-
son's building in an amount of $1,500.
Trial was had before the coupt sitting without a jury.
The dourt found in summary: (1) that Figgins completed the
work in the amount of $13,674.75 and that no additional work
was done at the instance of Stevenson; but was done at the in-
stance of another building contractor who had a contract with a
subsidiary of Stevenson to build a building for Stevenson on the
same premises; (2) that no damage to the building was proven by
Stevenson; (3) that Figgins did not complete the work on time
and owed penalty of 31 days at $50 per day for a total of $1,550,
and (4) attorney fees were owed to Figgins.
Thus the court found a net amount due Figgins of $12,175.75
with interest from July 1, 1972, plus attorney fees.
The issues asserted by Stevenson are four:
(1) That the court erred in foreclosing the lien.
(2) That attorney fees were improper and should have
been allowed to Stevenson.
(3) That interest was improper.
(4) That damages, rather than the contractual penalty
should have been allowed to Stevenson and further that the evi-
dence showed damage to his building caused by Figgins.
Figgins cross-appeals, claiming that the contractual
penalty of $50 per day should not have been assessed against him
under the evidence since, although his completion was late, the
cause of the delay was the other subcontractors and Stevenson.
First of all, in his reply brief, Stevenson charges
that the cross-appeal of Figgins is not properly before the
Court since Figgins did not file a separate notice of appeal
under Rule 4, M.R.App.Civ.P. Suffice it to say that ~igginsas
respondent did, in his answering brief, set forth clearly his
cross-appeal. Rule 14, M.R.App.Civ.P., provides that this
Court may review any ruling against respondent and reverse or
affirm according to the substantial rights of the respective
parties. Accordingly, a cross-appeal by respondent's brief is
sufficient to put the issue before this Court.
As to issue No. 1, the thrust of Stevenson's argument
is that since the contract specified, under the payment provision
heretofore quoted, that payment was not due until (a) "final
Certificate of Payment has been issued by the * * * Owner", and
(b) lien waivers were furnished by the contractor; then those
two matters are conditions precedent to payment being due. Under
that argument, apparently Stevenson would have us believe that
so long as he never issued a certificate he would not be required
to pay. Obviously that is incorrect.
As to the requirement of lien waivers, from Stevenson's
testimony it is clear that Figgins completed the work in a satis-
factory manner, but Stevenson claimed deductions for contract
over-run and alleged damage to a building. Stevenson knew the
amount claimed due by Figgins under the contract plus extras;
and he, together with his attorney, entered into settlement nego-
tiations prior to the lien being foreclosed. In July, prior to
the filing of the lien, Stevenson wanted to pay $5,000 on the
contract in exchange for lien waivers. Figgins refused, insist-
ing on the full amount.
That lien waivers can be a condition precedent is clear.
Franklin v. Schultz, 23 Mont. 165, 57 P. 1037; Riddell v. P.-W. H.
& V. Co., 27 Mont. 44, 69 P. 241; Clifton-Applegate-Toole v.
Drain Dist. No. 1, 82 Mont. 312, 267 P. 207. However, where
Stevenson refused to pay the contract balance and there was a
dispute as to the amount due and owing under the contract, the
rule does not apply. If Stevenson had offered to pay the contract
price, the rule would apply. Figgins would then have been
obligated to furnish the lien waivers.
Stevenson also argues that before a lien can be valid,
the contract amount must be proven. In support he cites: Greene
Plbg. & Heating Co. v. Morris, 144 Mont. 234, 395 P.2d 252;
Luebben v. Metlen, 110 Mont. 350, 100 P.2d 935; Thompson v. Cure,
133 Mont. 273, 322 P.2d 323; and Harsh Mont. Corp. v. Locke, 134
Mont. 150, 328 P.2d 926. Those cases are not in point in the
instant case. Here, Stevenson admitted an amount of over $10,000
was due. An overstatement of the amount due, absent fraud or bad
faith, does not invalidate a lien. (See Hammond v. Knievel, 141
Mont. 433, 378 P.2d 388; and Duval v. Fuchs, 141 Mont. 123, 375
P.2d 541, where an exaggeration by ten times was held to be fraud.)
Thus the lien was valid. It follows that attorney fees
were proper. Stevenson does not contest the amount of the fees;
only whether they are proper. Thus, issue No. 2 is answered.
Issue No. 3, interest having been allowed from July 1,
1972, we feel needs no discussion, since once the validity of the
lien is established and the date of the completion of the contract
established, under the circumstances here, the running of interest
started.
Issue No. 4, that damages other than the contractual
penalty of $50 per day should have been allowed will be discussed
with the cross-appeal of Figgins. The district court allowed
Stevenson a penalty of 31 days at $50 per day. The court based
this on the fact that the contract completion date was May 27,
whereas Figgins did not finish until June 28.
Under the contract provision heretofore quoted as para-
graph 8.5, the contractor was not responsible for liquidated
damages if the delay resulted from staking, delay of other sub-
contractors' failure to cooperate.
Here, the staking to be done under paragraph 8.3 here-
tofore quoted was not done. Stevenson explained this failure by
saying that he, Stevenson, did the staking himself although he
admitted he was not a surveyor nor engineer. Witnesses for
Figgins testified that there was no adequate staking. At best
a conflict in evidence was presented. But, it was more than a
mere conflict in reality because Stevenson never had the staking
done as he agreed.
Moreover, Stevenson admitted that the lagoon was eliminated,
the location of the well changed, the well and plumbing by a
separate subcontractor delayed. It followed that Figgins could
not complete his work of backfilling until those items were done.
The natural consequence of those matters was that Stevenson, who
really superintended the whole job as his own contractor, was as
much the cause of delay as were other subcontractors. Stevenson
argues that since the contract language reads "failure to cooper-
ate" and no testimony in the literal sense of those words was
offered, no showing was made of reasons for the delay past May 27.
As we review the record, the opposite is shown, and we hold the
district court was in error in finding any penalty due. We
therefore hold that Figgins is entitled to relief on his crass-
appeal. It follows then that appellant Stevenson's issue No. 4
on damages is not meritorious.
By what has been heretofore said, we affirm the judgment
of the district court and modify it to include $1,550 and further
attorney fees on this appeal in the amount of $500. The cause
is remanded to the district court for entry of judgment in accord-
ance herewith.