Docket No. 1206
Decided: Thursday, July 19th, 1894
Opinion: 9 Wash. 434 (1894)
Court: Dunbar1 Court (1893-1894)
Note: We post only slip opinion(s) as published at the time of the decision. Please consult Washington Reports printed volumes for the opinion(s) in their final form. Undetermined votes indicate that the opinion(s) have not been evaluated yet.
SAVINGS, LOAN & BUILDING CO. v. JONES, 9 Wash. 434 (1894).
SUPREME COURT OF WASHINGTON July 19, 1894, Decided Appeal from Superior Court, Whatcom County.
Court: Judgment reversed in part and affirmed in part.
Counsel: T. E. Cade, and Bruce, Brown & Cleveland, for appellant United States Savings, Loan and Building Company.
Lichtenberg, Shepard & Lyon, for appellants Underwood & Minturn. Kerr & McCord, for respondent Fairhaven Land Company.
Judge(s) SCOTT, J. STILES and ANDERS, JJ., concur. HOYT, J., dissenting.
Opinion By: SCOTT The opinion of the court was delivered by SCOTT, J.--Separate actions were brought against the property in controversy herein, one being by the United States Savings, Loan and Building Company to foreclose a mortgage thereon, and one each by the Fairhaven Land Company and Underwood & Minturn, to foreclose liens for materials furnished for the construction of a building thereon. The latter also included a claim for labor. The Loan and Building Company appeals from the decree rendered in the consolidated cause, establishing the lien of the Fairhaven Land Company for a part of its claim; and Underwood & Minturn appeal from the decision rendered therein holding their lien claim invalid.
A motion is made by the respondent, the Fairhaven Land Company, to strike the statement of facts on the ground that the statement served upon them did not contain much of the matter included therein as returned to this court; the contention being that it only embraced so much of the record as is contained between pages 93 and 145 of the record, and that all of the remaining portions included between pages 1 to 93 and 145 to 210 were added thereafter, more than sixty days after the entry of the decree and more than thirty days subsequent to the service upon respondent of the notice of filing the proposed statement of facts. It appears, however, that the first 93 pages of the record consist of the pleadings, journal entries and part of the report of the referee, and the remaining part, which was added, contains the evidence embraced in the case made by Underwood & Minturn. All the evidence relating to the respondent's case is set forth in that part of the statement which was served. A certificate, regular in form, to the effect that the statement contains all the material facts, is appended to the statement and signed by the judge; and this certificate recites that the respondent was present at the time of the settlement; and were it not for the fact that the parties had stipulated that the parts aforesaid were added to the statement against the objection of the respondent, the respondent would be precluded from raising the question in consequence of the certificate's not showing any objection at the time the statement was settled. However, we are of the opinion that the motion should be denied, as under the former appeal law, which was in force when these appeals were taken, the clerk was required to send up all of this additional matter in the transcript. The case of Underwood & Minturn was contained in and was a part of the report of the referee and was on file in the cause, and was properly sent up for this reason. Owing to the conclusion to which we have arrived upon the merits regarding the claim of Underwood & Minturn, it is unnecessary to determine whether sending it up in this manner would be sufficient to bring their cause before the court, and the case otherwise as affecting the respondent, the Fairhaven Land Company, was duly settled and certified.
The appeal of the United States Savings, Loan and Building Company will be first considered. It is contended that the claim of the Fairhaven Land Company to a lien was insufficient in that there is no sufficient statement of the terms and conditions of the contract or of the material furnished in the lien notice. The part of said lien notice covering this point reads as follows: "That on or about the 15th day of April, 1891, the claimant above named, the Fairhaven Land Company, made and entered into a contract with Mrs. Emma Jones, through her husband and agent Reginald Jones, he being the person having charge of the construction, erection and completion of the said Silver Beach hotel building, by the terms of which the claimant agreed to furnish the lumber material to be used in the construction, erection and completion of said Silver Beach hotel, for the contract and agreed price of $ 567.30, and also agreed to furnish the lumber material to be used in the completion of the wind mill and water tank above described for the agreed price of $ 4.50, and that said Emma Jones, by her husband and agent, Reginald Jones, promised to pay said amounts when said material was furnished and on or before July 20, 1891, to said Fairhaven Land Company." The respondent contends that this lien notice should be sustained on the ground that it is a claim for all the lumber material "to be used in the erection, construction and completion of said Silver Beach hotel;" and it might be that a notice of lien couched in such language might be sustained if it appeared that it covered all the lumber material used in the construction of the building. At the time this lien notice was offered in evidence, however, testimony had been introduced on the part of the lien claimant to show that at the time the contract was entered into for the furnishing of this material, the hotel had in fact been partly constructed; and the contract was, from the standpoint of the claimant, to furnish the lumber material necessary for the completion of the building only. And here an element of uncertainty enters into the matter. Such a description covering all the lumber material used in the construction of the building would be definite and certain possibly, although it did not mention the particular amount used; but when the proof shows that it is intended to cover the lumber material used in the completion of a building which had been partly constructed and is in process of construction, it becomes indefinite and uncertain and fails to contain a sufficient statement of the terms and conditions of the contract asdisclosed by the evidence. For that reason the objections raised to its admission should have been sustained, and it is unnecessary to consider the further question raised, that the amount of the lien claimed in the notice was largely in excess of the lumber material which was furnished, many other items having been included therein which would not come under that description.
The claim of Underwood & Minturn was disallowed on the ground that the lien notice filed by them was defective. The parts thereof in relation thereto are as follows: "3. On April 10, 1891, Reginald Jones, as one of the reputed owners and as agent of the other owner of the land, and as the person in charge of the construction of the building, entered into a contract with the lienors 'to furnish such material as should be ordered by said agent and such labor as should be necessary to build into said building such material as should be required so far as the lienors should be able to furnish the same.' "4. Pursuant to the contract the lienors did furnish to said Jones to be used in the construction of the building certain materials and labor as one continuous running account and as ordered by him, which was reasonably worth $ 1,789.27, of which only $ 172.99 has been paid in cash and $ 76.64 in goods returned." No attempt was made in this notice to describe the kind of material furnished, or to segregate the amount claimed for the material from the amount claimed for labor. It is urged by the appellant that this lien notice was good and should be sustained on the ground that it was founded upon a contract entered into between the claimants and the owner of the property; and the same argument is urged by the Fairhaven Land Company in support of its lien. Notices substantially like these have been held invalid by this court in cases where the lien was founded upon a contract entered into between the claimant and a "contractor" for the erection of the building. It is claimed that a more liberal rule should obtain when the contract is made by the owner of the premises, as the owner in such cases has actual knowledge of the claim. But the statute does not make the right to a lien rest upon the owner's knowledge of the contract or of what was done under it. The lien notice must be filed within the time specified, containing a statement of the demand and a statement of the terms and conditions of the contract. We have held that a statement of the demand requires something more than a statement of the amount claimed. If the right to a lien could be maintained because the owner had knowledge of the purchase of the materials in question, and of the furnishing of the labor, in consequence of having made the contract therefor, it might as well be sustained where the contract for the materials is made by a contractor for the erection of the building, if the owner of the premises had knowledge of the making of the contract, and of its performance, for it is the knowledge of the owner that this contention is based upon rather than the manner of obtaining the knowledge; he might know in regard to the matter fully as well where the contract is made by another party in his presence, or where he was informed of it afterwards, as if he had made it himself. Furthermore, if the right to a lien is to depend upon the owner's knowledge, there would be no reason, it would seem, for requiring a lien notice to be filed at all as against him where he is informed as to the matters upon which the right to a lien is based, for the law does not require a mere idle thing to be done, and if the only object of the notice is to inform the owner of the premises of the nature of the claim, it would be unnecessary where he already had that knowledge independent of any such notice. Consequently it cannot be sustained, for the statute requires a notice to be filed as the foundation for the lien claim, and we see no room for making a distinction in cases where the contract for the material or the labor is made by the owner directly with the claimant instead of being made by a "contractor" with a "sub-contractor." The nature of the claim must be reasonably set forth in the notice. The statute requires the notice to be filed in all cases, and makes no distinction between cases where the contract is made directly with the owner and where it is made with another party. The notice must contain a statement of the demand and a statement of the terms and conditions of the contract in all cases to comply with the statute.
We are aware that in passing upon the sufficiency of lien notices in this respect we have heretofore in some cases discussed the same from the standpoint of furnishing knowledge to the owner of the premises in cases where the contract was made by the contractor for the erection of the building with a sub-contractor. This is the first time the question has been squarely presented upon a notice where the contract is alleged to have been made by the lien claimant with the owner, and were it not for the requirements of the statute it might well be that, where the owner has the knowledge independent of the notice, a more liberal rule should obtain in construing the notice. But we see no escape from the proposition that by so holding we would logically be driven to hold in all cases where the owner has such knowledge, whether he made the contract or not, that the same rule should obtain, and to the extreme of holding that where the action is brought within the time during which a lien may be enforced, and to foreclose a lien for materials or labor for which a lien notice might have been filed, that the suit could be maintained without the filing of any notice, for it would be but a mere idle ceremony to file a notice not containing the statutory requisites, if it is to be sustained on the ground that the owner had knowledge of the matters involved aside from the notice.
So far as we are advised no court has gone to the extent of holding that the filing of the notice can be dispensed with. The right to a lien of this kind is a statutory one, and the legislature has prescribed the conditions therefor in the statute, one of which is that a notice must be given, and it would seem as though the same construction with reference to such notice must apply in all cases, regardless of the actual knowledge of the owner of the premises.
It follows that the judgment of the lower court establishing the lien claim of the Fairhaven Land Company should be reversed, and affirmed as to the disallowance of the claim of Underwood & Minturn.
STILES and ANDERS, JJ., concur.
HOYT, J.--I dissent from the conclusions as to the motion to dismiss, but concur as to the merits.