Christnot v. Montana Gold & Silver Mining Co. , 1 Mont. 44 ( 1868 )

Knowles, J.

The respondent Ohristnot brought an action in the court below to foreclose a mechanic’s lien upon a quartz mill of the appellant, the Montana Gold and Silver Mining Company. The court gave the respondent judgment, and a decree for the sale of said mill property to satisfy the same.

The appellant mad,e a motion for a new trial, which the court denied ; from which order the appellant appealed to this court.

From the evidence set forth in the bill of exceptions, it appears that the respondent entered into a contract with appellant to perform mechanical labor on and about the said quartz mill of appellant, for $5 per day; that this was less than the usual price, but was consented to by respondent on the promise of constant employment; that he performed, under the orders of the agent of the appellant, work upon a house for the agent; that at different times he worked at making sleds, ox frames, tubs and cutting logs for the appellant, etc.; that respondent worked on the mill one hundred and ten days; that appellant paid him certain amounts on his labor; that at the time of making out his lien, he appropriated these payments, first, in liquidation of the account for labor not performed on the mill, and then in payment for the labor 6n the mill, so far as it would go. It is not denied there is still due respondent, on all the labor performed, the balance he claims. It is not contended that the appellant at any time appropriated these payments.

The main question presented in this case is, had the respondent the right to appropriate the payments to him in liquidation of the labor performed by him not on the mill.

It is contended by the appellant that the account between respondent and appellant was one, not different accounts ; and that the respondent had no right to select out certain items, and apply the money he received in payment of them. The evidence shows that the respondent was hired by appellant to perform labor in a quartz mill. If respondent performed labor, which cannot be treated as labor on the said quartz mill, then the respondent has two distinct accounts, not one. The one hundred and ten days’ labor were performed under an express contract for work on a quartz mill and its appurtenances. The balance of the work was not on this quartz mill, or its appurtenances; and hence, Was not performed under this contract. The company was liable for this labor on an implied contract. It is not contended that the original contract was ever varied or waived. The respondent treated the work done by the orders of the agent of the appellant, on his house, as work performed for the company. What issues were presented to the court below we do not know, as the pleadings in the cause are not made a part of the transcript. From the evidence set forth in the bill of exceptions, and from the brief filed by the appellant, this court is warranted in the inference that there was no issue presented to the court below upon the amount of indebtedness, but only as to the amount for which respondent was entitled to a lien upon the quartz mill. If there was such an issue presented, from the evidence set forth in the transcript, this court could not determine whether the court below had taken into consideration the amount of labor performed upon the building of the agent, in making up its findings of the amount of labor performed for appellant by respondent or not. Hence it ■will be seen there is not enough presented in the record to warrant us in interfering with the findings of the court below on this point.

The respondent, having two distinct accounts, could, at any time before he made out and filed his lien, as the appellant had not up to that time appropriated the payments made to respondent, appropriate them to the payment of either account. See Haynes v. Waite, 14 Cal. 446; Field et al. v. Holland et al., 1 Am. Lead. Cas. 276.

We are inclined to hold that where a party performs labor for another in a case where he would be entitled to a lien for one part of his labor, and not for the balance, he may properly charge for his labor under two different accounts. And if the debtor, at the time of payment of any sum to the creditor, fails to make an appropriation to one or the other of the accounts, the creditor may do so at any time before he files his lien.

The respondent having appropriated the money paid to Mm by appellant, first in payment for the labor not performed in the quartz mill, and then, as far as the balance would go, upon the labor on the said mill. And it appearing that the court below gave respondent judgment for $898.50 less than the value of the one hundred and ten days’ labor performed in the said mill, we can find no error in the ruling of the court below.

The order and judgment of the court below is affirmed with costs.

Affirmed.

Wabben, C. J., concurred. ’ ’