Merchant v. Humeston

Opinion by

Hoyt, Associate Justice.

This action was brought to foreclose four certain liens for labor done and materials furnished in the construction of seven houses, situated on lots five and six, in block thirty-nine, in Maynard’s Plat, in Seattle.

The Court below sustained a demurrer to the complaint, on the ground that the notices of liens set out therein were, and each of them was, insufficient and void; and the plaintiff has brought the cause here by appeal, to correct the ruling of the Court on said demurrer.

The appellees, to sustain the action of the lower Court, rely upon two specifications of the insufficiency of said lien notice: Pirst, that the statement of the demand for which lien is claimed is not sufficient, because in the statement thereof the lien has substituted for the words “ over and above all credits and offsets,” mentioned in the statutes, the words “ over and above all credits and effects but we are of the opinion that if we apply the liberal rule of construction invoked by the Legislature as to this lien law, we can either substitute for said word “ effects,” in said notice, the proper word, “ offsets,” or that the expression “ over and above all credits,” taken in connection with the other allegations of these notices, is a substantial compliance with the statute, without the addition of the words “ or offsets.”

We therefore think that this statement in the notices was sufficient. The other alleged defect in these notices is, that there is no sufficient description of the property to entitle said liens to be enforced as against the defendants who appeared in the cause, who were incumbrancers of the property against which said lienors were seeking to enforce their liens.

The notices were not exactly alike, and if we find any of them sufficient, the demurrer must be overruled. We will therefore investigate that of Ballard & Sox, which was conceded on the argument to be the best one of the four.

This notice sets out that they furnished materials used in the construction of seven certain dwelling houses, situated on said lots five and six, upon which there was due and unpaid the sum of $79.5(3 ; and claims a lien therefor “ in the proportion aforesaid,” to wit: $12.74 upon each of the seven houses ; the words “ proportion aforesaid ” having, however, nothing in the notice upon which it could be predicated, unless it was the statement that the said seven houses, were of about the same size. And there is nowhere in said notice an allegation that of the materials furnished $12.74 worth, or any other certain amount, went into any particular one of said houses, excepting a repetition towards the close thereof of the words “ in the proportion aforesaid.” And we do not think this loose statement sufficient to show that, of the said materials, any particular amount went into any one of said houses, and without such an allegation there is no foundation for the claim of lien. In order to make said lien claim of $12.74 enforcable against any or each of said houses, it should at least appear by direct averment that that particular amount of material had gone into the particular house in question, and was unpaid for, and that a lien was claimed therefor; and should further contain a description of the property upon which such house was situated, sufficient for identification ; and to say that a particular house is one of seven, all of which are situated on two certain lots, is no designation at all as to the location of said particular house, as there is nothing tending even to show as to which of said lots it is upon.

If the claimant had set out in his notice that he furnished said material as a single transaction for the building of the seven houses, and that they were all built as substantially one building, and claimed a lien on the whole thereof for his entire claim, a different question would have been presented; but he saw fit to claim seven distinct liens of $12.74 each, and in order to sustain such lien on any one house, there must be such direct averments as would make such claim good if it stood alone, unconnected with the claims against the other houses. Of course, some cf the statements could be grouped, but it must clearly appear that the lien for the sum of $12.74 claimed upon any ■one house is for that amount of unpaid-for materials used in the ■construction thereof; and said notice must further contain a definite description of that particular house, so as to identify it not only with all the others, but also from all the others.

Wo have already seen that the most liberal construction of this notice will fail to make of any averment therein, even substantially, a statement of these necessary facts. It follows that the notices were void, and that the action of the Court in sustaining the demurrer to the complaint was correct, and that the •decree rendered thereon must be affirmed, and it is so ordered.

We concur: S. C. Wingard, Associate Justice.

George Turner, Associate Justice.