DocketNumber： No. 3920
Judges： White
Filed Date： 9/3/1901
Status： Precedential
Modified Date： 10/19/2024
This is a suit in equity to foreclose a lien on certain lots in the city of Seattle for grading a street in front of such lots. Respondent moves the court to strike from the record and files the brief of the appellants, on the ground that the findings of fact and conclusions of law requested by appellants are not printed in the brief of the appellants; and respondent further moves the com t that, on granting the motion to strike the brief, the appeal be dismissed. The respondent further moves the court that the judgment of the lower court be affirmed, for' the reason that the exceptions of appellants to the findings of fact and conclusions of law do not specifically point out the findings complained of as erroneous. Sub-division five of Rule 8 provides that in all equity causes and actions at law tried l>y the court without a jury the party appealing shall print in his brief the findings of fact, with the exceptions thereto, etc., and also- such findings as the lower court was requested to make, with the refusal .and exceptions in case any error or contention sliali be based thereon. The opening brief of the appellants fails to comply with subdivision five of Rule 8. The reply brief, however, complies with the same. This provision of the rule is for the benefit of the court. Ro injury can result to the respondent from failure to comply with it. Respondent is advised by the record in the case and the assignment of errors as to the points that will be urged on the appeal for a reversal. The printing of the findings, etc., in the reply brief cures the omission. The last ground urged is not well taken. At the time of signing’ the findings, the record shows that the appellants took-exceptions in the following form and manner, which were allowed by the court:
*8 “The defendant in open court at the time the court signed the foregoing findings, except to each and every part of each and every of the foregoing findings of fact and conclusions of latv, that is to say: To the 2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, and 15fch findings, to the 1st and 2d conclusions of law, — which exceptions, and each of them, are allowed, and entered in the record in this action.”
This was sufficient, under the rule laid down by this court in Ranahan v. Gibbons, 23 Wash. 255 (62 Pac. 773). The motions are therefore denied.
The respondent brought this action to foreclose a lien on certain lots of the appellants fronting on Roy street, in the city of Seattle, and to recover $185.05, secured by such lien for the grading of part of said street. At the instance and request of George Kinnear, an ordinance was passed by the city council of Seattle granting permission to Kinnear, defendant Frank Borzone, and three other persons named therein, to improve Roy street between Second avenue West and Kinnear Park, at their cost and expense, by grading and sidewalking said street under the direction of the city engineer. Under and pursuant to said ordinance the city engineer prepared plans of and specifications for said proposed improvement. These plans and specifications were partly in writing, and were set forth in a printed form used by the city of Seattle in advertising for proposals for the improvement of streets. Portions of the printed form were stricken out, the remaining portions contained many stipulations applicable to contracts made directly with the city, such as:
“Material necessarily wasted from the cutting shall be disposed of as the city engineer may direct, no extra allowance being made for hauling or disposing of the same unless the distance hauled exceeds one thousand (1,000) feet. One cent per cubic yard will be paid for every one*9 hundred (100) feet so hauled over and above one thousand (1,000) feet for public use.”
“The contractor shall not assign or transfer the contract for this improvement or sublet any of the work embraced in it, without the written consent of the board of public works.”
“The work embraced in the contract for this improvement shall be begun immediately after written notice so to do shall have been given to the contractor by the board of public works, and carried on regularly and uninterruptedly thereafter (unless the said board shall otherwise, in writing, specially direct) with such force as to secure its completion within ninety (90) days thereafter; the time of beginning, rate of progress, and time of completion being essential conditions of said contract. And if the contractor shall fail to complete the work by the time above specified, the sum of twenty dollars per day, for each and every day thereafter until such completion, shall be deducted from the moneys payable under said contract.”
The wTords “ninety (90)” before “days” was inserted in a blank space left in the printed form. Under the head, “General Description of Work and Materials,” is the following, all being in writing after the words “It shall consist of”:
“The improvement therein described is authorized by Ordinance Ño. 4825 of the City of Seattle, and shall conform to the requirements thereof.
“It shall consist of clearing, grubbing, grading, parking, surfacing, sloping, constructing sidewalks, box ’ drains, crossings and bulkhead in the portion of Eoy street above described and the approaches thereto.
“The waste material from the excavation shall be deposited as follows: 1st. In Eoy street where required for embankment in the district included in this improvement. 2d. In the projections of the Fifth and Fourth avenues West and in Third avenue West from Eoy street south toward Mercer street, as directed by the city engi*10 neer. Any clearing and. grubbing necessary in any of Lire said avenues shall be done or paid for outside of this contract, by the owner or owners of property abutting thereon. 3d. On the property on the south side of Roy street as may be permitted by the owners thereof.
“The right to waste said surplus material shall be exercised in the order designated as above.”
The following typewritten agreement was prepared m duplicate, and signed by the property owners and Had-field & Roberts:
“An agreement made and entered into this 18th day of May, 1899, by and between Hadfield and Roberts, parties of the first part, and Geo. Kinnear, Violet E. Parker, Erank Borzone, John King, Helen Taylor, Ira Bronson, M. A. Parsons and D. E. Decater, the parties of the second part. Witnesseth:
“Said Hadfield and Roberts agree to clear, grub, sidewalk and otherwise improve Roy street from Second avenue West to the east side of Sixth avenue West or Clover street, according to the plans and specifications of the city engineer and under his directions, as follows, to-wit:
All clearing and grubbing in said street for $95.00.
Moving all earth, (18) eighteen cents per cubic yard.
Sidewalks, culverts and box drains, and bulkheads, including nails and sifikes ($11.05) eleven dollars per M. feet, B. M.
“Upon the completion of said improvements and am ceptance by the city engineer, said Geo. Kinnear, Violet E. Parker, Erank Borzone, John King, Helen Taylor, Ira Bronson, M. A. Parsons and E. D. Decater agree to pay to said Hadfield & Roberts as per prices above mentioned, each in proportion to his ownership and interest in the property abutting and proximate to said Roy street and in said grade district liable by city law to pay for said improvements on said street as the same shall be completed and distributed by the city engineer.
(Description of Property.)
[Here follows description of the property and opposite the same the name of the owner. One of the descrip*11 tions being: West half of vacated Meadow street, and Block 23, G. Kinnear’s Addition, opposite which was the name Frank Borzone.]
“Witness our hands and seals the day and year above written.”
...............(Seal.) ............... (Seal.)
...............(Seal.) ............... (Seal.)
The reason for preparing this agreement in duplicate was that some parties lived at one place, and some at another. One copy was sent in one direction and one in another, for the signature of the owners. These two copies were introduced in evidence. The copy signed by the appellant Frank Borzone contains the following interlineation in writing after the description of the property: “Each party hereto to pay only such part of the total cost as his foot frontage bears to the total frontage improved in said street.” The other copy signed by some of the owners, contains the following interlineation after the words “distributed.by the city engineer”: “To be completed September 1, 1899.” The respondent pleaded that Frank Borzone and Louise Borzone were husband and wife; that they were the owners as community property of Lots 1, 2, 3, Block E, of Kinnear’s Park Addition to the City of Seattle; that said lots are the same property described in the contract hereafter mentioned as Block 23 and the east half of Meadow street, in Gr. Kinnear’s Addition, being replatted under such description after the date of such contract. These allegations are not denied in the answer. The respondent further pleads that on the 18th of May, 1899, one Hadfield & Koberts, co-partners on the one part, and Geo. Kinnear and the others, mentioning them by name, who had signed the two duplicate agreements, including Frank Borzone, on the other part, entered into an agreement, partly written and partly
The respondent, by way of reply, denies that the specifications prepared by the city engineer were any part of the contract, and reaffirms that the contract set forth in the complaint is the only contract, and he denies the allegations as to placing the earth on the lots, and the damages alleged. The respondent also denies the second, third, fourth, fifth and seventh affirmative defenses, and all facts except the tender alleged in the sixth affirmative defense.
There are fifteen assigned errors, but they may be grouped under four heads: First. Is the statute unconstitutional providing for liens on real property in favor of any person who, at the request of the owner improves a street in front of his property? Second. What are the papers that constitute the contract, what is the contract, and what is the amount due thereon ? Third. The right to claim liquidated damages for the breach of the contract. Fourth. The right to counter-claim for damages under the pleadings for placing earth on the lots of the appellant. The statute under which the lien is claimed by respondent is as follows :
*16 “Any person who, at the request of the owner of any real property, his agent,' contractor or sub-contractor, clears, grades, fills in or otherwise improves the same, or any street or road in front of or adjoining the same, has a lien upon such real property for the labor performed, or the materials furnished for such purposes.” Bal. Code, § 5902.
The grading of a street in front of property is an improvement of the property. Ordinarily, such work is done by the municipality, and in such cases a proportionate cost of the improvement according to benefits, under the local assessment plan, may be charged against the property. Where the individual owner sees fit to do the same work by permission of the city, it is none the less an improvement to the abutting property, and we see no reason why the lien given by the express words of the statute in such cases should not attach in the same manner and to the same extent as where the improvement is placed directly on the lot in place of appurtenant to it. Of course, if the work is done by the city under the local improvement plan, or under its general power, no lien will attach under the laws relating to the liens of mechanics and material men. But where the work is done under a contract made directly with the owner, the lien is given by statute. The mere fact that the improvement benefits the public as well as the owner is no reason for holding that the property improved shall not be subject to a lien for the cost of the improvement.
Under the typewritten paper, of date of May, 1899, signed by Hadfield & Roberts and the owners of the property abutting on Roy street, “Hadfield & Roberts agree to clear, grub, grade, sidewalk and otherwise improve Roy street.” “All clearing and grubbing in said street for $95.00. moving all earth, (18) eighteen cents per cubic yard. Sidewalks, culverts and box drains and bulkheads, including
“The waste material from the excavation shall be deposted as follows: 1st. In Roy street where required for embankment in the district included in this improvement. Second. In the projections of Fifth and Fourth avenues West and in Third avenue West from Roy street south toward Mercer street, as directed by the city engineer. Any clearing and grubbing necessary in any of said avenues shall be done or paid for outside of this contract, by the owner or owners of property abutting- thereon. 3d. On the projterty on the south side of Roy street, as may be permitted by the owners thereof.
“The right to waste said surplus material shall be exercised in the order designated as above.”
The provisions in the paper prepared by the city engineer when preparing the plans and working details, that the contractor should not assign or transfer the contract without the consent of the hoard of public works, and if the contractor should fail to complete the work within
The third defense amounts to no more than a denial. As to the fourth defense, there is no evidence to support the same and no exceptions as to the ruling of the court. All parties necessarv to the complete determination of the
The tender of one hundred forty dollars, as pleaded in the sixth defense, does not preclude the appellants from showing damages under the first defense, to the amount of $45.05, the balance claimed by the respondent. The tender simply admits that under a contract made by the appellants with Tladfield & Roberts, and assigned to Kahlberg’, and by Kahlberg to the respondent, Kahlberg improved Roy street in the manner alleged in the complaint, and that for such work they are indebted to the respondent in the sum of $140. They continue the tender made before the action was commenced, and bring the money into court in connection with their special plea as to what the contract was, and in connection with their special defenses, and the tender simply admits that under the contract, as they plead it in connection with their defenses, there is but $140 due from them for the improvement of the street to the respondent. By such tender they admit some kind of a contract as alleged, and they cannot deny, after making such a tender, that any contract was made by them with Tladfield & Roberts for the improvement of the street, or that it was assigned to Kahlberg, and by him to respondent, or that the amount due thereon is one hundred forty dollars. Hinds v. Cottle, 143 Mass. 310 (9 N. E. 654) ; Simpson v. Carson, 11 Ore. 361 (8 Pac 325) ; Cox v. Parry, 1 Durnford & E. (Term R.), 464; Spalding v. Vandercook, 2 Wend. 431; Davis v. Millaudon, 87 Am. Dec. 517.
The method of the computation of assessment of cost of work, as stated in the duplicate typewritten agreement, was that each property owner, upon the completion of Hie
Objection was made to the lien notice. This notice states the time of commencement and cessation of performing the work and furnishing the material, the name (John Kahlberg) of the person who performed the labor and furnished the material, and that the same was at the request of Frank Borzone. It contains a description of the property charged with the lien sufficient for identification. It states the name of the reputed owner as Frank Borzone. It states the amount for which the lien is claimed as $185.05. It, in addition, gives a general description of the work done, and states the value of this work was $185.05. It states that John Kahlberg, by an assignment in writing, duly assigned the claim and his right to claim a lien to M. H. Young. The notice was properly verified. We think the notice a full compliance with § 5904, Bal. Code. The statement that one performed labor, etc., at the request of another is equivalent to saying that he was employed hy the other. The evidence is sufficient in this case to show that the appellants knew that Kahlberg was doing this work as the assignee of Hadfield & Roberts; besides, the tender pleaded admits that fact. The law allows the assignment of such a contract as was made between the appellants and Hadfield & Roberts (§ 4835, Bal. Code) ; and when the assignee, with full knowledge of, and without objection from, the contracting parties, performs the labor contracted to be performed, he must he held, under
The record shows that by order of the court the respondent drew down the $140 tendered. Under §4835, supra, the appellants could plead in defense the counter-claim set up in the first affirmative defense. The court erred in excluding testimony, as we have indicated in this opinion, as to the damages relative to placing the earth and stumps on the lots of the appellants, as claimed in the first affirmative defense. For that reason the judgment is reversed, with instructions to the court below to proceed with the cause so far as to ascertain such damages. If such damages are equal to or exceed $45.05, the defendants to recover costs; otherwise, the plaintiff to have a decree of foreclosure of his lien for the amount due him over $140, with costs, with such attorney’s fees, not exceeding twenty-five dollars, as the court below may allow. Appellants to recover their costs on this appeal.
Keavis, O. J., and Andees, Dunbab, Mount, Fulleeton and Hadley, JJ., concur.