Fawcett v. Nampa & Meridian Irrigation District , 32 Idaho 713 ( 1920 )

B*UDGE, J.

This is an action to foreclose a mechanic’s lien against the property of the Nampa and Meridian Irrigation District. The court, after making and filing its findings of fact and conclusions of law, entered judgment against the .district for $6,686.16, with interest at the rate of seven per cent per annum from April 9, 1915, the date of making the findings, amounting to $171.62, for $9.60 paid for filing and recording the mechanic’s lien and for $1,000 attorneys’ fees for the foreclosure thereof, and decreeing the foreclosure of the lien. /

Both parties have appealed from the judgment. The only question involved on the plaintiff’s appeal is whether the court erred in refusing to allow interest on the amount found to be due from the date of the rendition of the service and the furnishing of the materials and prior to the date of the decision. This court has hitherto adhered to the, rule that where a claim is for unliquidated damages, the amount of which- is not susceptible of ascertainment by computation or by reference to market values, interest will not be allowed prior to judgment. (Barrett v. Northern Pacific Ry. Co., 29 Ida. 139, 157 Pac. 1016; Austin v. Brown Brothers Co., 30 Ida. 167, 164 Pac. 95; Graham v. Brown Brothers Co., 30 Ida. 651, 168 Pac. 9.) While the point does not seem to have been material in the above eases, the circumstances of this case require us to call attention to the fact that the true date from which the amount found due draws interest is the date of the rendition of the verdict of the jury or the decision of the court. (C. S., sec. 7220.)

In the present case appellant, treating the contract of employment as breached, abandoned the work and sued for the reasonable value of the services rendered and the materials furnished. Actions to recover the reasonable value of services performed and materials furnished in cases like the one at bar have been properly held to fall within the rule above referred to. (Cox v. McLaughlin, 76 Cal. 60, 9 Am. St. 164, 18 Pac. 100; Meyer v. Buckley, 22 Cal. App. 96, 133 Pac. 510; American-Hawaiian Engineering & Construction Co., Ltd., v. Butler et al., 17 Cal. App. 764, 121 Pac. 709; Macomber v. Bigelow, 126 Cal. 9, 58 Pac. 312.)

The appeal by the district presents three questions: (1) Did the court err in failing to find the facts on the issues raised by the affirmative answer and the cross-complaint, with 'respect to the alleged claim by the district for liquidated damages claimed to arise by reason of the failure of respondents to complete the work by a given time? (2) Did the court err in holding that respondents had a right to abandon the contract and sue for the reasonable value of the services performed and materials furnished? And (3) Is the property of an irrigation district subject to a mechanic’s lien under existing statutes?

As to the first question, the record before us is insufficient to enable the court to pass upon its merits, for while it is true that findings are required upon all material issues (Sarret v. Hunter, ante, p. 536, 185 Pac. 1072; Muckle v. Hill, ante, p. 661, 187 Pac. 943), a judgment will not be reversed for want of a finding unless it appears that there was evidence before the court from which it was required to make a finding which would countervail its other findings. (Winslow v. Gohransen, 88 Cal. 450, 26 Pac. 504; Rogers v. Duff, 97 Cal. 66, 31 Pac. 836; Bliss v. Sneath, 119 Cal. 526, 51 Pac. 848; Carpenter v. Bailey, 127 Cal. 582, 60 Pac. 162; People v. McCue, 150 Cal. 195, 88 Pac. 899; Terry v. Southwestern Building Co. (Cal. App.), 185 Pac. 212.)

The only record before us is the judgment-roll. The evidence is not before us, nor has any bill of exceptions been presented, preserving the point. It must be regarded as settled law in this state under existing statutes that where upon appeal from a judgment the record brought to this court contains neither a transcript of the proceedings had upon the trial nor a bill of exceptions, nothing belongs to the record except the judgment-roll and no question outside of the record can be considered by the court. (Williams v. Boise Basin Min. etc. Co., 11 Ida. 233, 81 Pac. 646; Bell v. Stadler, 31 Ida. 568, 174 Pac. 129; Bumpas v. Moore, 31 Ida. 668, 175 Pac. 339; Minneapolis Threshing Machine Co. v. Peterson, 31 Ida. 745, 176 Pac. 99.)

As to the second point, it is contended by appellant that the judgment is not sustained by findings 3, 4 and 5, and is contrary to law. These findings are in substance and so far as material to the point under discussion that respondents began work under their contract with appellant about March 1, 1910, and continued to furnish material and labor thereunder-until and including January 8, 1911, that the contract provided that the engineer’s estimates should be made on the 1st and 16th of each month during the progress of the work and that payments should be made within 15 days after each estimate, that the estimate for the 16th of December was not made until on or about December 31, 1910, that appellant wrongfully failed and refused to pay the • amount due' respondents under this estimate, and that thereupon respondents quit work under the contract and had a right so to do.'

Appellant contends that notwithstanding the latter estimate was not made until December 31, 1910, it had 15 days thereafter within which to make the payment therefor.

In the absence of any contention or showing that respondents had waived the making of the estimate on the date specified in the contract, viz., December 16, 1910, appellant’s contention is obviously unsound. To hold otherwise would be to enable appellant to postpone payment indefinitely without being in default by merely failing to make the estimate at the time specified in the contract. Not only is there no contention that the making of the estimate upon the date specified in the contract was waived, but the record before us is affirmatively to the contrary, the complaint alleging “that the plaintiffs requested that said estimate for December 16, 1910, be made, and that they be paid the amount due them thereon, but defendant failed and refused to make or cause said estimate to be made, and failed and refused to pay the plaintiffs for the work so done and the material so furnished. ’ ’

The general rule is that the refusal to pay an estimate when due is such a violation of the contract as gives the other party a right to abandon it and sue for the reasonable value of the services rendered and materials furnished. (Richmond Dredging Co. v. Atchison, T. & S. F. R. Co., 31 Cal. App. 399, 160 Pac. 862, and cases therein cited.) Upon the record before us we are unable to say that the point in dispute does not fall within the foregoing rule.

The third question presented, viz., Is the property of an irrigation district subject to a mechanic’s lien under existing statutes? arises because the judgment of the court has subjected the property of the district to respondents’ claim of lien, and has allowed respondents a $1,000 attorney fee, and $9.60 costs for filing and recording the lien, which could have been allowed only upon the theory that the property was lienable.

It is contended by appellant that since an irrigation district is a municipal corporation (Gem Irr. Dist. v. Van Deusen, 31 Ida. 779, 176 Pac. 887, and cases therein cited), its property is public property and not the subject of a mechanic’s lien under our statutes.

The statutory provisions involved are C. S., see. 7339, containing the general provision with respect to mechanics’ and materialmen’s liens, and C. S., sec. 7340, which provides for a lien for labor performed1 or materials furnished to be used in the construction, alteration or repair of any building, machinery or other structure for any county, city, town or school district.

The general rule, supported not only by reason but by the overwhelming weight of authority, is that a mechanic’s lien does not attach to public property unless expressly provided by statute, since such lien would be contrary to public policy and also incapable of enforcement. (Bank of Idaho v. Malheur County, 30 Or. 420, 45 Pac. 781, 35 L. R. A. 141, and note; National Fireproofing Co. v. Town of Huntington, 81 Conn. 632, 129 Am. St. 228, 71 Atl. 911, 20 L. R. A., N. S., 261, and note; Hutchinson v. Krueger, 34 Okl. 23, Ann. Cas. 1914C, 98, and note, 124 Pac. 591, 41 L. R. A., N. S., 315, and note; 27 Cyc. 25; 18 R. C. L. 881.)

Respondent insists, however, that since C. S., sec. 7340, has. made an exception to the rule in the case of a county, city, town or school district, the rule should be relaxed to include other municipal corporations, but inasmuch as the latter section does not expressly provide for a lien upon the property of any municipal corporation except those specified, we are of the opinion that the rule above stated and so strongly supported by authority prevents the extension of the specific terms of the statute by judicial construction.

But respondent further contends that C. S., sec. 7341, requiring contractors to give a bond for the protection of those furnishing labor or material upon state or municipal work, while it protects those furnishing labor and material, affords no protection to the contractor other than the general lien, and referring to all of the foregoing sections in question says:

“From the above it seems evident that the legislature intended that every person who furnished labor or material in the construction, alteration or repair of every kind of property should be protected by a lien on the property so constructed, altered or repaired.”

This court has held that the remedy provided by C. S., sec. 7341, is merely cumulative to that provided by C. S., sec. 7340. (Chamberlain v. City of Lewiston, 23 Ida. 154, 129 Pac. 1069.) The latter decision, however, goes further and holds that the remedies provided by C. S., see. 7340, are not affected in any way by the remedy provided by C. S., sec. 7341. The provision of the section requiring a bond to secure those who perform labor or furnish materials upon municipal construction work does not necessarily imply that a lien for such items exists, nor does the statute expressly extend the lien provided by the preceding section to the property of any other municipal corporation, in the absence of which, statutes similar to C. S., sec. 7341, have been universally held to furnish a remedy m lieu of a lien and have been construed to be a substitute for the ordinary mechanic’s lien applicable to private work. (Knight & Jillson Co. v. Castle et al., 172 Ind. 97, 87 N. E. 976, 27 L. R. A., N. S., 573, note, p. 579, subd. V; United States, Use of Vermont Marble Co., v. Burgaorf, 13 App. Cas. (D. C.) 506; United States, Use of Hill, v. American Surety Co., 200 U. S. 197, 26 Sup. Ct. 168, 50 L. ed. 437; Title Guaranty & Trust Co. v. Crane Co., 219 U. S. 24, 31 Sup. Ct. 140, 55 L. ed. 72; Equitable Surety Co. v. United States, Use of McMillan, 234 U. S. 448, 34 Sup. Ct. 803, 58 L. ed. 1394; Illinois Surety Co. v. John Davis Co., 244 U. S. 376, 37 Sup. Ct. 614, 61 L. ed. 1206, see, also, Rose’s U. S. Notes; Cleveland Metal Roofing & C. Co. v. Gaspard, 89 Ohio St. 185, 106 N. E. 9, L. R. A. 1915A, 768; United States v. Illinois Surety Co., 226 Fed. 653, 141 C. C. A. 409; National Surety Co. v. United States, 228 Fed. 577, 143 C. C. A. 99, L. R. A. 1917A, 336; United States v. Brent, 236 Fed. 771; United States v. Lowrance, 236 Fed. 1006; United States v. Montgomery Heating & Ventilating Co., 255 Fed. 683.)

Our conclusion is that no mechanic’s lien has been expressly provided as against the property of any municipal corporation other than a county, city, town or school district, and that the property of an irrigation district is not the subject of a mechanic’s lien under existing statutes.

That portion of the judgment giving a lien upon the property of the district, decreeing its foreclosure and ■ awarding $1,000 attorney fees and $9.60 cost of filing and recording the lien, is erroneous. The judgment should be modified accordingly as of the date of its original entry, and as so modified will stand affirmed. Costs are awarded in favor of the district on both appeals.

Morgan, C. J., and Rice, J., concur.