Whittier v. Stetson & Post Mill Co. , 1893 Wash. LEXIS 260 ( 1893 )

Dunbar, C. J.

(dissenting). — Lack of time prevents me from entering into an extended discussion of this case, but, briefly stated, I am unable to distinguish the case of Whittier, Fuller & Co. from the case of Dexter Horton & Co., Bankers, v. Sparkman, 2 Wash. 165 (25 Pac. Rep. 1070). It makes no difference in principle that the lien in that case was filed on material that the law does not allow a lien on, for the law will not under any circumstances allow a lien on one man’s house for material which goes to another man’s house, and the material is as much non-lienable under the statute, for the purposes of this case, as though it were absolutely non-lienable. I do not think the fact that the same contractor built the two houses, or that the two houses were built with a joint partition wall, affects the case at all. They were two separate contracts, and it devolves upon the material man when he seeks to charge, a third man’s property with a debt due from the contractor, to definitely inform himself as to where the material is used. I think the trial court was justified, under the former rulings of this court, and under the law, in holding that appellants had no lien against respondent’s property, and the judgment ought to be affirmed.

Scott, J., dissents.