Ekstrom United Supply Co. v. Ash Grove Lime & Portland Cement Co. , 194 Kan. 634 ( 1965 )

The opinion of the court was delivered by

Wertz, J.:

This was an action in which a subcontractor sought to foreclose a mechanic s lien for material supplied in the alteration and repair of a business building. The facts are not in dispute.

Defendant (appellee) Ash Grove Lime & Portland Cement Company, a Corporation, was the owner of the property on which the improvements were made. Jack Durham and John Jordan were defendant contractors. Plaintiff (appellant) Ekstrom United Supply Co., a Corporation, was the subcontractor which furnished materials.

The plaintiff alleged it furnished material in a specified amount for the construction and alterations and repair of a men’s shower room in the defendant’s plant building located on the described property and that it filed its mechanic’s lien statement with the clerk of the district court within the statutory time.

It was admitted that the lien statement was filed within the statutory time; the description of the property upon which the lien was claimed was properly set out in the lien statement; the account was properly attached; and the articles purchased were delivered upon the premises of the defendant and used in the improvement of the building.

Plaintiff’s mechanic’s lien statement filed with the clerk was signed:

“Ekstrom United Supply Company

“By_s/ W. L. Johnston_

“Claimant”

The verification attached to the lien statement read as follows:

“State of Kansas, Allen County, ss:

“I do solemnly swear that I am the claimant above named and that the foregoing statement is true in every particular.

. “_s/ W. L. Johnston____

“Subscribed and sworn to before me this 31st day of July, 1962.

“_s/ Berenice Dobie_

“Notary Public

“Com. Exp: 5-3-65”

The case was submitted to the trial court upon stipulated facts from which it found that the lien statement had not been verified by claimant Ekstrom United Supply Co. in accordance with the statute and entered judgment for the defendant, from which plaintiff appeals.

The sole question for determination on this appeal is whether or not the mechanic’s lien statement was properly verified.

Our mechanic’s lien statute, G. S. 1961 Supp., 60-1403, provides in pertinent part that any person who shall furnish any material under a subcontract with the contractor may obtain a lien upon the land for the amount due him for such material by fifing with the clerk of the district court of the county in which the land is situated, within sixty days after the date upon which material was last furnished under such subcontract, a statement verified by affidavits setting forth the amount due from the contractor to the claimant, and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant, a description of the property upon which the lien is claimed, and by serving notice as provided therein.

It is a settled rule in this state that equitable considerations do not ordinarily give rise to a mechanic’s lien. Being created by statute, a mechanic’s lien can only arise under the circumstances and in the manner prescribed by the statute. A lien claimant must secure a lien under the statute or not at all. (Don Conroy Contractor, Inc. v. Jensen, 192 Kan. 300, 304, 387 P. 2d 187.) The validity of a lien created solely by statute depends upon the terms of the statute, and parties may not by estoppel enact or enlarge a statute. (Clark Lumber Co. v. Passig, 184 Kan. 667, 673, 339 P. 2d 280.) There is no privity of contract between the subcontractor and the owner, and the former can only obtain a lien by compliance with the statutory provisions. It is not enough that he has furnished the material and filed a hen. The verification prescribed in the statute is one of the necessary steps. Without such verification the lien claimant obtains nothing. The right to claim and enforce his lien being statutory, compliance with the statute is a prerequisite. (Jones v. Lustig, 185 Kan. 208, 210, 341 P. 2d 1018.)

In Reeves v. Kansas Coöp. Wheat Mk’t. Ass’n., 136 Kan. 306, 309, 15 P. 2d 446, this court said:

“The verification prescribed in the statute means that tire statement filed shall be sworn to by the claimant before an officer having authority by law to administer and certify oaths and affirmations. It was evidently intended to require truth and accuracy in the statement, but, whatever the purpose may have been, it is an essential element of a valid lien. Plaintiff offered to show and did testify that when the acknowledgment was made he was sworn to the statement, but the statement filed to constitute a lien must be complete in itself and must show on its face all the matters which the statute requires to be shown to create and fix the lien. The statute is mandatory, and the lack of a verification in the statement filed, and which is to serve as a notice to the public, necessarily defeats the lien. In claims for mechanic’s liens there are some similar statutory requirements, and authorities on those cases have some application. It has been held that references and evidence outside of the lien statement are not sufficient to support a lien. . . .” [Emphasis supplied.]

In the instant case the lien statement was executed and signed by plaintiff Ekstrom United Supply Co. as claimant by W. L. Johnston. So much would appear to be regular and unimpeachable. The verifying affidavit, however, signed by W. L. Johnston in which he swears he is the claimant, says nothing about his being an agent and making it in behalf of the plaintiff or anyone else. The lien statetment filed and signed by the plaintiff alleging that it furnished the material to the defendant was not verified by plaintiff or W. L. Johnston as its agent. Failure of the plaintiff to verify its lien statement in accordance with the mandatory provisions of the statute is fatal to its right to recover in the instant action, and the judgment of the trial court must be affirmed.