Hobart Estate Co. v. Jones , 51 Nev. 315 ( 1929 )

In this case no contractural relations existed between the appellants and respondents, and respondent's claim, even against Walter W. Akers, was an unliquidated claim for the reasonable value of materials alleged to have been used on appellants' buildings under lease to Akers. Appellants could not have paid the amounts of the liens as they did not set forth the materials or any itemized list thereof, and contained charges against Akers determined by the court to be nonlienable, to wit, coal, which was used for domestic purposes. In view of the fact that both liens are shown to contain nonlienable items in addition to being absolutely unliquidated claims, no interest should be allowed against any party before judgment, and certainly not against the owners of the land.

This claim of lien is clearly distinguished from the kind of lien which is enforced against an owner upon a contract to pay to a contractor a definite and specified sum. In the last-mentioned case, there is authority holding that interest may be allowed since the demand is liquidated, but all authorities are to the fact that interest cannot be allowed where the demand is unliquidated.

If the court will refer to the findings, it will be noted that in each case the trial court was determining the reasonable value of the materials furnished; likewise, in the claims of lien, the reasonable value of the materials furnished is the basis of the demand, and nowhere is there any contention that a contract to pay a definite sum ever existed. We take this occasion to call the attention of the court to the following authorities: Burnett v. Glass, 97 P. 423; Macomber v. Bigelow, 58 P. 312. In addition, we call attention to sec. 2228 of the Rev. Laws of Nevada, providing that if any interested party pays the amount of the claims the lien shall be discharged or a penalty exacted. Nothing is said about interest, and interest is not contemplated where the owner discharges the liens. How, therefore, could the lien claimant recover interest?

In this case the court allowed an attorney fee of five hundred dollars and ordered the foreclosure against the property of the appellants. We do not find the authority upon which this attorney's fee is allowed, and while we may have overlooked at this time the section of the law, we still submit that no valid law can exist which permits the recovery of such an attorney's fee against any party to the suit, and certainly not as against the mere owners of the property. The claims must find sound basis in our statutes for their existence. An attorney's fee allowed to a lien claimant cannot be based on any law which is in itself unconstitutional. Under the state and federal constitutions, every party litigant must come into court with equal rights, and no law which permits a lien claimant to recover an attorney's fee, if successful, can be permitted to stand as against the fundamental provisions of the constitution. Directly and absolutely in point on this question is the case of Builders Supply Company v. O'Connor, 150 Cal. 265, 88 P. 982, 119 A.S.R. 193. As to appellants' contention that no interest should be granted to respondent on its claims prior to the date of the decree, it will be noted that all cases cited in appellants' brief in support of the doctrine go back to and make reference to the case of Cox v. McLaughlin, 18 P. 100. And yet a careful analysis of that case shows that it does not support the rule as contended by appellants, particularly when applying the facts of the case at bar. In fact, the doctrine is in such a modified form that appellants' contention fails when the proposition in its full significance is stated. It is clear from the holding in the case of Cox v. McLaughlin, supra, that the respondent was rightly allowed and granted interest on the lien claims, for it is clear that under the facts of the case at hand the value of the materials was fixed and liquidated as to amount, in that they "were susceptible of ascertainment either by computation or by reference to market values or other known standards." There was nothing so peculiar and unique in the character of the materials furnished as to preclude their susceptibility to ascertainment by computation or by a reference to market values or other known standards.

In addition, the case of Burnett v. Glass, 97 P. 427, cited at length by appellants, provides in a paragraph not quoted by appellants that where the amount is so fixed by agreement that it may be made certain by calculation, interest may be allowed prior to judgment.

The reason underlying the idea that no interest is allowable on unliquidated claims is that there is no time of default from which to date the running of interest.

Again, the facts of the case at bar, if they could be considered by the court on an appeal on the judgment roll alone, in the light of this basic theory, show beyond the shadow of a doubt that they present a case separate and distinct from those in which interest has been denied. Here, in addition to an amount capable of ascertainment by calculation, we have a definite date from which to start the running of interest, i.e., the date provided in the agreement as that when payment should be due, and that date was thirty days after delivery. The pleadings show this fact.

In further support of this contention we cite 20 N.Y. 463. Likewise, the following cases hold that if by contract the default may be fixed at a definite and certain time, then interest may be granted, because the amount and not the right to recover is uncertain. 2 N.Y. 135; 4 Wend. 313; 2 Barb. 643;36 N.Y. 255. The clearest case in point and one holding unequivocally for the proposition contended for by respondent is that of Pacific Mutual Life Insurance Co. v. Fisher, 39 P. 758, 760. See, also, 1 Or. 183;44 Md. 472; 116 Mass. 196; Van Rensselaer v. Jewett, 2 N.Y. 135,139.

We call the notice of the court to vol. III of the Revised Laws of the State of Nevada, sec. 2499, at page 2855. It will be seen from an examination of the provisions there set forth under the heading "money and interest" that provision is made in the statutes of this state for the allowance of interest in cases such as the present one.

As to the allowance of attorney's fees, sec. 2224, Rev. Laws of Nevada, while covering similar matters to sec. 1195 of the Code of Civil Procedure of California, is, however, unlike sec. 1195 C.C.P. which was formerly held to be unconstitutional, in that sec. 2224, Rev. Laws of Nevada, gives equal rights to both parties, in that an attorney's fee is allowed to the prevailing party and not alone to the lien claimant as under the old California code section.

In conclusion, without the record of facts before it, this court could not determine whether or not the lower court had evidence before it to award interest on the lien claim, and not having the record must assume that the judgment is supported by the facts.

OPINION This is an action to recover a personal judgment against certain of the defendants and to foreclose a mechanic's lien. From a judgment foreclosing a mechanic's lien, and an order denying a motion for a new trial, Millie Jones and Elizabeth A. Rodgers have appealed on the judgment roll alone. Only two points are urged, namely, that the court erred in allowing interest on the claim prior to judgment and in allowing an attorney's fee to the plaintiff.

The appellants were, in the year 1923, the owners of certain real estate in Pershing County Nevada, which they leased to the defendant Walter W. Akers, who thereafter assigned his lease to the Reservation Land Cattle Company. The plaintiff sold and delivered to said Akers, to be used in repairing and enlarging a certain building on said premises, building supplies, and thereafter in due time filed its mechanic's lien statement. This suit was brought to foreclose that lien. Certain other lien claimants were joined as defendants with Akers and the appellants.

1. The first contention we will consider is that the court erred in giving judgment for interest on the amount due for supplies furnished. In support of this contention we are referred to the case of Burnett v. Glas, 154 Cal. 249, 97 P. 423, wherein it is held that the claimant was not entitled to interest for the reason that the amount due was unliquidated. We have no doubt but that the holding in that case was correct; but, in view of the fact that there is no evidence before us, every presumption must be indulged that there was a showing in the lower court that the claim in question was not an unliquidated claim as of the date from which the court ordered that it draw interest.

2. Our statute provides that, when there is no express contract in writing fixing a different rate of interest, interest shall be allowed at the rate of 7 per cent per annum upon all money from the time it becomes due in certain cases, of which this is one. Stats. 1917, p. 351; 3 Rev. Laws, p. 2855, sec. 4. The complaint alleges the time when the amount sued for became due. In the circumstances we must assume that the amount claimed fell due at the time fixed by the court. There is no merit in the contention that section 2228, Rev. Laws, limits the amount of the recovery to the principal. It does not undertake to fix the method of arriving at the amount due on a mechanic's lien statement, but simply to require the claimant to enter an acknowledgment of satisfaction when the amount due, whatever it may be, is paid. We do not think the court erred in allowing an attorney's fee.

Counsel for appellant says in his brief: "* * * We do not find the authority upon which this attorney's fee is allowed and while we may have overlooked at this time the section of the law, we still submit that no valid law can exist which permits the recovery of such an attorney's fee against any party to the suit and certainly not as against the mere owners of the property. The claims must find sound basis in our statutes for their existence. An attorney's fee allowed to a lien claimant cannot be based on any law which is, in itself, unconstitutional."

Section 2224, Rev. Laws, provides: "* * * The court may also allow, as part of the costs, the moneys paid for filing and recording the lien, and shall also allow to the prevailing party reasonable attorney's fees."

Counsel disclaims knowledge of this provision of our statute and places his argument upon the reasoning in Builders' Supply Depot v. O'Connor, 150 Cal. 265, 88 P. 982, 17 L.R.A. (N.S.) 909, 119 Am. St. Rep. 193, 11 Ann. Cas. 712, which held that a statute which authorized the allowing of an attorney's fee to the lien claimant, in case he prevailed, but which made no provision for an attorney's fee to the adverse party in case he prevailed, is void. The case is not in point, since our statute authorizes an allowance of an attorney's fee to the prevailing party, whether plaintiff or defendant.

3, 4. Every statute is presumed to be constitutional, and as the California case is not in point, and as no other reason is pointed out as a ground for holding it unconstitutional, we are compelled to say that the law quoted is valid. Without expressing an opinion we may say that there are authorities which seem to raise a serious doubt as to the correctness of the opinion of the California court. Among them are: Missouri, K. T. Ry. Co. of Texas v. Cade, 233 U.S. 642, 34 S. Ct. 678, 58 L. Ed. 1135; Vosburg v. A.T. S.F. Ry. Co., 89 Kan. 114, 130 P. 667; Cascaden v. Wimbish (C.C.A.), 161 F. 241; A.T. S.F. Ry. Co. v. Matthews,174 U.S. 96, 19 S. Ct. 609, 43 L. Ed. 909; Mills v. Olsen, 43 Mont. 129,115 P. 33.

Perceiving no error on the record, the judgment and order are affirmed.

ON PETITION FOR REHEARING May 15, 1929.