Tonopah Lumber Co. v. Nevada Amusement Co.

By the Court,

Sweeney, J.:

This is an action brought by the Tonopah Lumber Company, a corporation, plaintiff, against the Nevada Amusement Company, a corporation, William Easton, P. Walsh, G. W. Peer, C. W. Hopkins, the Peer-Hopkins Company, R. E. Waugh, R. M. Henningsen, and the Western Engineering and Construction Company, defendants, to foreclose a material-man’s lien filed against the property of the defendants. Under a stipulation between counsel for both parties Mr. Thomas F. Flannigan was appointed referee to take the evidence regarding the claim of the Tonopah Lumber Company against said defendant. It appears from the transcript that there were other liens filed by the Western Engineering and Construction Company, the Nevada Power Company, and the Goldfield Lumber Company, and other minor claimants, all of which were settled by Messrs. Walsh and Easton, who were made defendants, as owners of the lands and premises upon which the building was erected. The referee appointed by the court, after hearing the evidence in support of the claim of the plaintiff, the Tonopah Lumber Company, rendered his findings in favor of the demands of said company, less $403.20 offsets, which the court adopted as its findings of fact, and upon which judgment was duly entered by the district court of Esmeralda County; and this appeal is taken by the defendants William Easton and P. Walsh from said judgment, and from the order of the court denying their motion for a new trial.

It appears from the evidence that Ray B. Cox, collector1 and solicitor of the' Tonopah Lumber Company, which furnished the materials to the Nevada Amusement Company, lessee of the land upon which the building, in which the materials were used, was erected, through Waugh and Hen-ningsen, contractors for said lessee, in answer to the following queries, testified:

" Q. What I want to know is whether there was any special time that you should deliver, or a limitation when you should deliver, a certain amount of lumber, during the construction of the building? A. There was no understanding as to the quantity of lumber we were to deliver to them, except that amount which Mr. Waugh and Mr. Henningsen saw fit to order, and we were to deliver that as soon as possible after we received the requisition for the same.

"Q. In other words, there was no entire contract for 200,000 or 1,000,000 feet, or any definite quantity? A. There was never a specific quantity to be delivered to them, except the orders from day to day.

"Q. As the order would come into the office, it would be filed and the lumber delivered? A. Exactly.

"Q. O. K.’d as you have stated? A. O. K.’d by them, and paid by the parties who saw fit.

"Q. Did you ever have any direct orders from the Nevada Amusement Company, or did they come through Waugh and Henningsen or their agents — do you know? A. The Nevada Amusement Company never gave us any orders directly for lumber. They always came through Waugh and Henning-sen or their agents, as far as I know.”

It appears from the evidence that the Nevada Amusement Company, owing to strikes in Goldfield and the stringency of the money market, ceased work on the building on the 15th day of February, 1907, and on that date all the men were discharged, and their wages paid to them. It appears that on the 27th day of April, 1907, the Nevada Amusement Company had an opportunity to let a room in the uncompleted building to the Nevada-California Power Company, and proceeded to finish said room, in order to do so, according to the original plans and specifications for said building. It is claimed by appellants that after the cessation of work on the 15th of February, 1907, which is insisted to be an abandonment of the contract, Easton and Walsh, who live at and near Austin, Lander.County, on the 1st day of March, 1907, came to Goldfield, and at that time knew the work and labor, and the use of material, had entirely stopped, and the completion of the building abandoned, the men discharged, and that nothing further was contemplated being done leading to its final completion; that these gentlemen were never informed of the intention of the Nevada Amusement Company to fix up the room for the Nevada-California Power Company, and that they had no knowledge whatever of the intention to have this work and furnishing done, or of its being done, or of the fact of the furnishing of any lumber therefor by the Tono-pah Lumber Company, and that Walsh and Easton cannot be held responsible for this lien filed by plaintiff, because this work and material furnished cannot be considered as having been delivered in pursuance of the original contract, which, appellants contend, under the evidence, is not a continuous contract, but that each delivery of lumber became a separate completed contract, upon which a separate and immediate right of action arose, and that the lien is invalid, because not filed within the time limitations, as required by the statute of Nevada.

The following rule as to a continuing contract is concisely stated in 20 Am. & Eng. Ency. Law, 2d ed. 359, and we believe it' is applicable to the evidence and findings disclosed in this case: "Where materials are furnished from time to time, as they are ordered, upon a running account, and the material was ordered and furnished upon an understanding from the parties from the beginning that it was to be furnished for the purpose of the construction of the building, and there were reasonable grounds for expectation on the part of the- material-man that the material would be ordered, from time to time, to finish the building, the material will be deemed to have been furnished under an entire and continuing contract” And Mr. Phillips, in his work on Mechanics’ Liens, sec. 229, says: "When work or material is done or furnished, all going to the same general purpose, as the building of a house or any of its parts, though such work be done or ordered at different times, yet if the several parts form an entire whole or are so connected together as to show that the parties had in contemplation that the whole should form but one, and not distinct matters of settlement, the whole account must be treated as a unit, or as being but a single contract:’ See, also, Miller v. Batchelder, 117 Mass. 179, and Union Trust Co. v. Casserly, 127 Mich. 183, 86 N. W. 545.

The transcript discloses a conflict in the evidence as to whether or not the work, which stopped on February 15,1907, was an abandonment or merely a suspension or cessation of the work until further funds could be raised to complete the building. Mr. Waugh, of the contracting firm of Waugh & Henningsen, who had full charge of the construction of the building, and who was authorized to order such lumber or material as would be necessary, among other matters in connection with this case, testified as follows: "That made a question with me — what abandonment consists of. We expected to begin on that very day. For a month from the time they stopped work we have been expecting to begin work on it, every day for a month after we stopped working; so don’t consider it was abandoned until it ran on Such a length of time, and we knew the financial state of the country was in such shape that they could not get funds to resume, then we considered it abandoned, and started process to recover:’ And again he says, "they expected, to go ahead with the building”; and " they asked us to hold off, and it was put off from day to day.” It is' also agreed by parties in the record to be the fact that neither Waugh nor Henningsen was ever formerly discharged by any of the parties interested in this proceeding.

In view of the foregoing testimony, after considering all the evidence disclosed by the record, this court feels that the referee was fully warranted in making the following finding, later approved and adopted by the lower court, and in consonance with its repeated decisions this court will not vary a finding of fact where there is substantial evidence to support it: "That by reason of the failure and inability of Gr. W. Peer and C. W. Hopkins and their successors‘in interest, the Peer-Hopkins Company and the Nevada Amusement Company, to secure funds to prosecute the work in the erection of said building, there was a cessation of work on said building, on or about the 15th day of February, 1907, at which time there remained to be done, to make the building ready for occupancy, the placing of window frames with windows, lathing, plastering, plumbing, steam-heating plant, painting, and glazing, as called for in the original plans and specifications; that on or about the 27th day of April work was resumed on said building, by way of finishing' one room, 17x20, in ground floor, which room was finished May 3,1907, and which work of finishing was done under the direction of R. E. Waugh, and R. M. Henningsen, and said Western Engineering and Construction Company, and said room was so finished for the purpose of renting to the Nevada-California Power Company, a tenant of said Nevada Amusement Company!’

The evidence indisputably shows that the material supplied by plaintiff up to and including May 2, 1907, was actually used in the construction of the building upon the lands of defendants Walsh and Easton, and that the same was never paid for; that plaintiff was not in any way to blame for the cessation of work, nor ever ordered to cease supplying material, nor aware of any intention not to complete the building, and that the record clearly sustains the following finding of the referee: "That said Patrick Walsh and William Easton failed, within three days after they had obtained knowledge of the construction, alteration, or repair, or intended construction, alteration, or repair of said building, to give notice that they would not be responsible for the same, by posting a notice in writing to that effect in some conspicuous place upon said land or upon the building or other improvement situated thereon, nor did they give such notice at any time.”

The seventh paragraph of plaintiff’s complaint reads: "That William Easton and P. Walsh are the owners óf said lot of land, and the lessors thereof to the said Nevada Amusement Company, and know, and at all times knew, that said lessee was building and constructing the said building upon said lots of land, and never, at any timé, gave notice by posting in writing upon said lots of land or said building,'in a conspicuous place or otherwise, that they would not be responsible therefor.” This allegation sufficiently charges said defendants with knowledge, and is not denied anywhere in.their answer. This court has repeatedly held that a "lien can only legally exist when perfected in the manner prescribed by the statute creating it, and, being a statute of a remedial nature, we believe should be liberally construed, and that a substantial compliance with the law is sufficient to create a valid lien. (Skyrme v. Occidental M. & M. Co., 8 Nev. 221; Hunter v. Truckee Lodge, 14 Nev. 28; Lonkey v. Wells, 16 Nev. 274; Maynard v. Ivey, 21 Nev. 245.)” See, also, Porteous Dec. Co. v. Fee, 29 Nev. 380.

Section 3881 of the Compiled Laws concerning liens provides :

"Every person performing labor upon, or furnishing material of the value of five (5) dollars or more, to be used in the construction, alteration or repair of any building or other superstructure, * * * has a lien upon the same for the work or labor done, or material furnished by each, respectively, whether done or furnished at the instance of the owner of the búilding or other improvement, or his agent.”

And section 3889 thereof also states:

"Every building op other improvement mentioned in section one of this act, constructed upon any lands with the knowledge of the owner, or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this chapter, unless such owner or person having or claiming an interest therein, shall, within three days after he shall have obtained’ knowledge of the construction, alteration or repair, give notice that he will not be responsible for the same, by posting a notice in writing to that effept in some conspicuous place upon said land or upon the building or other improvement situate thereon.”

And the act of March 6, 1903 (Stats. 1903, p. 51, c. 32), provides as follows:

"* * * And every person, save the original contractor, claiming the benefit of this chapter, must, within' fifty days after the completion of any building, improvement or structure, or after the completion of the alteration or repair thereof * * * file for record with the county recorder of the county in which the property or some part thereof is situated, a claim containing a statement of his demand, after deducting all just credits and offsets, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed or to whom he furnished the material, with a statement of the terms, time given, and conditions of his contract, and also a description of the property to be* charged with the lien, sufficient for identification, which claim must be verified by the oath of himself or some other personf

Reviewing the transcript, and the law applicable thereto, as we construe it, we are of the opinion that the plaintiff’s furnishing of material on the resumed construction of the building, on the 27th day of April, 1907, is legally a continuation of the original contract for the construction of the building; and, as the last work was done on May 2, 1907, and the lien was filed on June 6, 1907, within the fifty days prescribed by law, the judgment and the order of the lower court overruling the motion for a'new trial must be affirmed. (Valley L. & M. Co. v Driessel, 93 Pac. 765, 13 Idaho, 662; Darlington L. Co. v. Harris, 107 Mo. App. 148, 80 S. W. 688; Fitzgerald v. Walsh, 107 Wis. 92, 82 N. W. 717, 81 Am. St. Rep. 824.)

The judgment and order appealed from are affirmed.