Becker v. Hopper

138 P. 179, 22 Wyo. 237, 1914 Wyo. LEXIS 6

Opinion

BraRd, JusTicR.

This action was brought by the defendants in error to enforce a mechanic’s lien. A decree was entered establishing and foreclosing the lien and judgment entered for $25 attorney’s fees. From that judgment and decree Charles Becker and Henry Becker appeal.

The plaintiffs below alleged in their petition, in substance, that Charles Becker was the owner of certain real estate in the City of Cheyenne upon which Henry Becker held a mortgage. That about June 1, 1910, Charles B'ecker entered into a contract with the firm of Brice and Mitchell by' which they agreed to furnish the materials for, and to construct on said lots a two story hotel building, with the exception of the plumbing and heating. That thereafter about June 17, 1910, Brice & Mitchell-sub-let the tin and galvanized iron work on said building to defendants in error, Hopper & Bartley, for the agreed price of $1,292. That under •said contract Hopper & Bartley furnished the materials and did the tin and galvanized iron work on said building. That between June 24, and September 9, 19x0, Hopper & Bart-ley sold to Brice & Mitchell hardware for use in and used in the construction of said building to the amount óf $375.02. That Brice & Mitchell paid to Hopper & Bartley July 16, 1910, $400, and July 23, 1910, $500. That on October 22, 1910, Hopper & Bartley filed in the office of the County Clerk of Laramie County their statement and claim for a mechanic’s lien on said building and premises. That about September 15, 1910, Mitchell, one of the members of the firm of Brice & Mitchell, died, and that soon thereafter George R. Brice, the surviving member of said firm, left the State of Wyoming. The petition was filed March 11, 1911.

After various motions, and a general demurrer to the petition were filed and disposed of, the defendants Charles and Henry Becker filed separate answers on December 23, in which, so far as necessary to be here stated, Charles Becker admitted the ownership of the real estate and the mortgage to Henry Becker and the payment of $900 by Brice & Mitchell; denied the other allegations of the petition and pleaded an estoppel. Henry Becker pleaded his mortgage. To these answers replies were filed.

The plaintiffs in error contend that the judgment and decree are erroneous for the following reasons, viz:

1. That there is grave doubt as to the constitutionality of the statute giving a lien to sub-contractors with whom the owner has no contractual relations.

2. That the lien account filed and offered, in evidence contains an item aggregating over $1,200, which is given in a lump sum, unitemized, and which is wholly uncertain and unspecific, neither the materials entering into the work being given, nor the labor in connection therewith.

3. That the lien account-was not properly verified.

4. That George R. Brice, the surviving member of the firm of Brice & Mitchell, the contractors, was never made a party to the suit.

5. That the statute awarding attorney’s fees in mechanics’ lien cases is unconstitutional.

6. That the plaintiffs below were estopped by their conduct and statements, which were relied upon by plaintiff in error, Charles Becker, from claiming or enforcing a mechanic’s lien.

Counsel for defendant in error contends that the first error assigned was not presented to the trial court and therefore is not properly presented here. But, passing by that objection, we are content to follow the decisions of the courts of last resort in a large majority of the states where the question has been decided, holding that such statutes giving sub-contractors a lien for labor and materials actually entering into the structure, do not violate constitutional provisions and are valid. The question was fully and carefully considered by the Circuit Court of Appeals, Sixth Circuit, in Jones v. Great Southern Fireproof Hotel Co., 86 Fed. 370, 30 C. C. A. 108, in an elaborate opinion by Judge Lurton, in which many cases are reviewed; and that decision was affirmed by the Supreme Court of the United States. Great Southern Hotel Co. v. Jones, 193 U. S. 532, 24 Sup. Ct. 576, 48 L. Ed. 778, in the foot note to which case many additional cases are cited.

The second error assigned relates to an item in the lien statement which it is contended is insufficient to entitle claimants to a lien. That item as it appears in the statement filed and offered in evidence is as follows: “Becker Hotel contract, tinwork, etc., $1292.00.” No date is given but it appears between other items of the account dated August 19, 1910. In the affidavit to the lien account it is stated that “said firm of Hopper & Bartley had a subcontract under the said Brice & Mitchell for all the tin work, etc., in connection with the construction of said hotel for the agreed price of One Thousand Two Hundred Ninety-Two Dollars ($1292.00) for labor and materials;- that said Brice & Mitchell were the original contractors for the construction of said Becker Hotel”, located, &c. The statute, Sec. 3803, Comp. Stat. 1910, is as follows: “It shall be the duty of every original contractor, within four months, and every sub-contractor, and every journeyman and day laborer, and every other person seeking to obtain the benefits of the provisions of this chapter, within ninety days after the indebtedness shall have accrued, to file in the office of the Register of Deeds of the proper county, a just and true account of the demand due him, her, or them, after all just credits shall have been givep, which is to be a lien upon such building or improvement,” * * * * There is considerable apparent conflict in the decided cases on the question of what particularity is required in a lien state ment. We say apparent conflict for the reason that in nearly all of the cases the decisions have been based upon the particular language used in the several statutes, in a number of which it is expressly provided that inaccuracy in the statement shall not invalidate the lien. Our statute requires a just and true account of the demand which is to be a lien; and we are of the opinion that the lien statement in this case was not a substantial compliance with that requirement. No case has been called to our attention wherein a statement so uncertain and indefinite as in this case has been held sufficient. “Becker Hotel contract, tin work, etc,” is very indefinite and by its terms includes other things besides tin work, the abbreviation, “etc”, meaning “and other things.” And from the evidence in this case it appears that this sub-contract did in fact include other things, viz: galvanized iron work, steel ceilings, skylights and glass. To be sufficient the statement should be sufficiently specific to enable one, not a party to the contract, to identify the things for which the lien is claimed. But counsel for defendant in error contends that Chapter 68, S. L. 1911, is applicable to this case. That Act was not passed until some months after the lien statement was filed and after the ninety days within which it could be filed had expired. It amended and re-enacted Section 3805, Comp. Stat., relating to the pleadings, practice, process and other proceedings in cases arising under the chapter on mechanics’ liens, and provided, among other things, that in all cases arising under the provisions of the chapter on mechanics’ liens, the lien account as filed shall be admitted in evidence and it shall be a question of fact whether the account as filed is sufficient to charge the owner or his agent with knowledge of the amount for which, and the work and labor done or materials furnished for which a lien is claimed; and if so found such lien account shall be held in all respects sufficient and valid and enforceable. It does not attempt to change or modify Section 3803, but attempts to change the question of the sufficiency of the statement there required from one of law to one of fact. There is nothing in the Act, if it were applicable, to indicate that it was intended to be retroactive in its application, nor do we think it could have such effect. Counsel argues that it is competent for the Legislature to change the rules of evidence as to existing causes, and that a party has no vested right in a remedy. That may be conceded; but it has no application here. He has fallen into the error of supposing or assuming that under our statute the filing of the lien statement is but the method of preserving and giving notice of an existing lien which the ¿claimant has by virtue of having performed labor upon or furnished materials for the building. The distinction between those statutes which provide that any person performing labor upon or furnishing materials for, &c., shall have a lien, and the provisions^ of our statute must be kept in mind. Our statute, Sec. 3799, Comp. Stat. 1910, is as follows: “Every mechanic or other person, who shall do or perform any work or labor upon, or furnish any materials, * * * * for any building, * * * * * * upon complying with the provisions of this chapter, shall have for his work, or labor done, or materials, * * * * * * furnished, a lien upon such building,” &c. . Under the former class of statutes the doing the work or furnishing the materials creates the lien which lapses or is dissolved at the expiration of a definite time unless the person having such lien files -the. required statement. That is, the filing of the statement preserves and keeps in force an existing lien; while.under our statute doing the work or furnishing materials does not.alone create a lien, but simply gives the person so doing the right to create or perfect a lien by complying with the statute. Until a just and true account is filed .the right is merely an inchoate right which may or may not ripen into a lien at the election of the person entitled to create it. It is the statute in force at the time the work is done or the materials furnished that measures the right, and if that statute is not complied with the right to the lien is gone and cannot be revived by legislation enacted after the time has expired within which such lien may be created or perfected.

The next assignment of error is, that the lien statement was verified before M. A. Kline, a notary public, who was the attorney in this action for plaintiffs below. After Mr. Bartley had testified that a certain letter had been prepared by Mr. Kline, as his attorney, he was asked: “At that time, October 4, 1910, you had retained Mr. Kline, as your attorney, to bring this action?” Ans. “Yes, I think that was the day.” The lien statement was verified Oct. 22, 1910, and the action was commenced March 21, 1911. At the time the lien statement was verified there was no action or proceeding pending, and the statement was not a pleading or affidavit to be filed in any action or proceeding then pending or being brought. The statement is required to be verified by the oath of the person filing the lien, or by some reliable person for him. We think the statute providing that the officer before whom the verification is made must not be the attorney of either party or otherwise interested in the event of the action or proceeding, applies only to pleadings, depositions and affidavits which are to be filed in an action or proceeding. It was so held by the Supreme Court of Kansas in Carr. v. Hooper, 48 Kan. 253, 29 Pac. 398, in which case the same objection was made to a mechanic’s lien statement as is here made, and it was held not to invalidate the lien.

The next contention is that there was a defect of parties defendant because Brice, the surviving member of the firm of Brice & Mitchell, was not brought in by proper service. The answer to that objection is, that when it appears on the face of the petition that there is a defect of parties, plaintiff or defendant, the objection may be raised by demurrer. And when the defect does not appear upon the face of the petition (as in this case) the objection may be taken by answer, and if no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdic tion of the court, and that the facts stated are not sufficient to constitute a cause of action. (Secs. 4381, 4382 and 4383, Comp. Stat. 1910). An examination of the pleadings in this case discloses that the objection was not taken by answer, and therefore, by the express provisions of the statute, was waived. (Gilland v. U. P. Ry. Co., 6 Wyo. 185, 43 Pac. 508; Mau v. Stoner, 15 Wyo. 109, 87 Pac. 434, 89 Pac. 466).

It is next contended that the statute awarding attorney’s fees in actions of this kind is unconstitutional. It provides, “in all suits or actions brought in the District Court to obtain a judgment on-such account and to enforce the lien, when the plaintiff or complainant shall obtain judgment or decree, the sum of twenty-five dollars, for attorney’s fees, shall also be taxed as costs and recovered from the adverse party.” (Sec. 3807, Comp. Stat. 1910). The decisions are not uniform on this question. In some of the states similar statutes have been held valid, and in others invalid as violative of the Constitution of the United States which guarantees to every person “the equal protection of the law”; and the provisions of state constitutions, that all laws of a general nature shall have a uniform operation; and that no special law shall be enacted when a general law can be made applicable. The decision most frequently referred to and cited in support of the decisions holding such statutes unconstitutional is Gulf &c. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 E. Ed. 666, holding invalid a statute of Texas allowing attorney’s fees to any person having a bona fide claim against a railroad company for services, or for damages for stock killed. The court said: “It is simply a statute imposing a penalty upon a railroad corporation for a failure to pay certain debts. No individuals are thus punished, and no other corporations. The act singles out a certain class of debtors and punishes them for like delinquencies it punishes no others. They are not treated as other debtors, or equally with other debtors. They cannot appeal to the courts as other litigants under like conditions and with like protection. * * * * They do not stand equally before the law. They do not receive its equal protection.” It is argued that this case has been much modified by the subsequent decisions of that court. True, the court has refused to apply the rule in certain cases involving the right to regulate the business and conduct of certain corporations or where the interest of the public was involved; but the principle that a statute discriminating between persons of the same class or similarly situated violates the constitutional provision of equal protection of the law has not, so far as we are advised, been modified or departed from. A statute similar to the one now under consideration was held invalid by the Supreme Court of Colorado in a well considered opinion in Davidson v. Jennings, 27 Colo. 187, 60 Pac. 354, 4 L. R. A. 340, 83 Am. St. Rep. 49. And in Mills v. Olsen, 43 Mont. 129, 115 Pac. 33, the Supreme Court of Montana reversed its former decisions and cites a large number of authorities in the opinion which need not be repeated here. The reasoning in those cases, supported as it is by the authorities therein cited, appears to us to be sound, and not shaken by the decisions holding the contrary. We are impelled to the conclusion that the statute awarding attorney’s fees in this class of cases is unconstitutional and void.

It is further claimed' that the court erred in holding that the defendants in error were not estopped from claiming a lien. Upon the evidence, as it appears in the record, we think there was no error in that respect.

Lastly, it is urged that the payment of $900 was more than sufficient to pay for all items for which defendants in error were entitled to a lien and therefore the judgment should have been in their favor. One of the defendants in error testified that these payments were credited on the anrount due under the contract for tinwork, etc. That it was the intention of all of the parties to be so applied seems reasonable from the further fact that at the time the payments were made but a small amount (less than $70 worth) of the hardware had been furnished. It is our opinion that the payments should be so applied.

The cause will be remanded to the District Court with directions to modify the judgment and decree by striking therefrom the sum of $392, and. interest thereon, being the balance of the item of $1292, after deducting the $900 paid; and striking out the $25 allowed as costs for attorney’s fees. The judgment as so modified is affirmed. The respective parties to pay their own costs in this court. '

Modified and Affirmed.

Scott, C. J., concurs. Potter, J., did not sit.