Culmer v. Hooper-Caine

61 P. 1008, 22 Utah 216, 1900 Utah LEXIS 23

• Court: Utah Supreme Court
• Decided: June 9, 1900
• Status: Published

Opinion

After stating the facts,

Miner, J.,

delivered the opinion of the court.

The appeal in this case is taken from'the judgment. No bill of exceptions was settled, or testimony returned.

1. Appellants first contention is that the cross-complaint does not set forth the contract between Wright, the contractor, and the owners of the property, Caine and Hooper, either in terms or legal effect, and no compliance with the terms of the contract is alleged as required by Sec. 2, and 10, Ch. 30, Sess. Laws, 1890, p. 25.

Upon an examination of the record we find that the cross-complaint was amended so as to obviate the objection made, and that as amended it was in compliance with the statute of 1890, prior to the change in its provisions in 1894, as held in Morrison v. Inter-mountain Salt Co., 14 Utah, 201. The case of Morrison, Merrill & Co. v. Willard, 17 Utah, 306, was applicable to Sec. 1372 R. S. 1898.

It is true that the sub-contractor can have no higher or greater right against the owner than the contractor. The contract with the latter measures and limits the rights of both. Boisot on Mech. Liens, Sec. 228; Phillips on Mech. Liens, Secs. 58, 62, 143.

2. Appellants also contend that no compliance with the provisions of the contract requiring that the work was to be done to the satisfaction of the architect, to be evidenced by his certificate is shown.

With reference to this objection the court found that Duvall & Mills, the cross-complainants, “fully completed all work contracted to be performed on said building, under said sub-contract, in accordance with the requirements and terms of said sub-contract on the 1st day of March, 1891.” This is a finding of the ultimate facts which included within its terms a certificate from the-architect, and rendered it unnecessary for a finding of the particular evidentiary facts with reference to the actual proof of the architect’s certificate. The finding that the contract was performed in all its terms and requirements, included all the conditions and provisions of the contract.

When evidence is not before the appellate court it will be presumed that the findings were supported by the evidence. Blethen v. Blake, 44 Cal. 117.

If the owner or principal contractor intended to insist upon their rights to a final certificate'from the architect, they could have notified the contractor, and if the certificate was refused, they could properly refuse payment for that reason. Besides the findings show that the principal contractor agreed with the sub-contractor upon the amount due, showing a balance of $2,812.30, due the sub-contractor after the completion of the work. Bannister v. Patty, 35 Wis. 215; Blethen v. Blake, 44 Cal. 117.

3. Appellants third contention is that there is a fatal variance between the allegations of the cross-complaint wherein the contract price is specifically alleged at $16,636 and the notice of the lien claimed $18,363.58, that being the reasonable value for labor and materials furnished, and that the former was by individuals, and the latter by a partnership, and that the notice was not signed or sworn to. Upon an examination we find that the notice or statement for a lien was subscribed Duvall & Mills, by Diehard Duvall, and was sworn to by Duvall, one of the claimants and joint contractors.' The claim was properly sworn to and the jurat was sufficient under the provisions of Sec. 10, Ch. 30, Laws of 1890. Neither Sec. 10, 15, or 17, Ch. 30 Laws of 1890, required the statement to contain the conditions of the contract, or that the several contracts should be separately stated. The statement-was required to contain a notice of the intention to claim a lien, a description of the property to be charged, an abstract of indebtedness showing the whole amount of the debt and credit, and the balance due, or to become due, with a verification of one or all of the claimants, or by some one for them. The notice or statement contained sufficient facts to justify a lien under the statute as it then existed. By Section 14, an incorrect statement of an amount due did not invalidate it unless made in bad faith. Phillips on Mech. Liens, Sec. 35,5; Garner v. Van Patten, 58 Pac. Bep. 684, 20 Utah 342.

Appellants fourth contention is untenable. The notice was in compliance with Sections 10 and 17, Sess. Laws 1890, and it was not necessary to state the amount' of work done or materials furnished, and amount due on each of the separate contracts. Under Sec. 17, where the work is continuous the lien attaches even if the work is done or materials furnished under separate contracts. The notice complied with Sec. 10, and stated the total amount of debt and credit, and the balance due. ,

5. The appellants contend that the notice for lien was not filed within 40 days from the last day of doing work and furnishing materials.

We find that the notice of lien'was filed March 28, 1891. The complaint, as amended, alleges the completion of the contract, last work done, and materials furnished March 1, 1891. The notice was filed within 40 days from the completion of the contract as required by the statute. Under this head appellants also contend that under Sec. 21 no lien shall hold the property longer than one year after filing the statement unless an action be commenced within that time to enforce the same; that the statement was filed March 21, 1891, and that the cross-complaint of Duvall & Mills was filed to enforce the contract February 1, 1892, but that no summons was ever issued on the cross-complaint or service had thereof until October 1, 1896, either upon Wright, the principal contractor, or the defendants Caine and Hooper, and that Wright had never appeared; that a purported copy of the cross-complaint was mailed to Wright at Butte after October, 1896, and returned endorsed “Received a copy of the within,” and signed by Wright, but no proof of Wright’s handwriting is shown, and that by reason of the delay defendants have lost all means of indemnity against Wright and his bondsmen on account of .the intervening insolvency of Wright and his bondsmen; that the action was not’ commenced within the year as required by Sec. 21; that under Sec. 31, Ch. 30, Laws of 1890, the practice is declared to be in accordance with the code of civil procedure; that Sec. 305 of said code (being Sec. 3221 C. L. U. 1888) provides that “the cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to the original complaint.”

Upon an inspection of the record we find that the original summons was issued December 15, 1891, and personally served on Duvall & Mills on January 7, 1892, together with a copy of the complaint. A stipulation was filed February 1st giving Duvall & Mills until February 1st, 1892, in which to answer. On that day they appeared and filed their answer and cross-complaint. The notice of lien was recorded on March 28, 1891. The answer and cross-complaint was filed within the year. Defendant Wright admitted service on the -back of the summons, as follows: “I hereby accept service of the.within summons this 8th day of January, 1892. (Signed) F. M. Wright.” On October 1, 1896, the answer and cross-complaint was mailed to Wright at Butte, Montana, by the attorneys for the cross-complainants, and at their request he wrote on the back thereof, the following: “Received a copy of the within answer and cross-complaint. F. M. Wright.” The same was thereafter filed. No service of the cross-complaint, or copy thereof, was made upon the defendants Caine and Hooper until October 1st, 1896.

As to the service of the summons on Contractor Wright we are of. the opinion that his admission of service as it appears on the back of the summons in the principal case, was sufficient proof of service of the summons in that case under Sec. 3203 and 3204, C. L. U. 1888. Personal service of the original summons was also made upon Caine and Hooper.

In our opinion the provisions of Sec. 3293, does not require service of summons within the year, but the summons is required to be issued within the year from the filing of the complaint. The summons on the original complaint was issued within the year and service had. From the time of the service of the summons as stated the court had acquired jurisdiction of the parties and control of all the subsequent proceedings in that Case. Bee. 3214 C. L. U. 1888.

Sec. 3231, C. L. U. 1888, provides: “Whenever the defendant seeks affirmative relief against any party relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates, he may in addition to his answer, file at the same time,! 0r by permission of the court, subsequently, a cross-complaint. The cross-complaint must be served upon the parties affected thereby, and such parties may demur or answer thereto as to an original complaint.”

Caine and Hooper, Duvall & Mills and Contractor "Wright were all made defendants and served with summons in the original case. They were all before the court. As to these parties it was not necessary that summons be issued on the filing of the cross-complaint of Duvall & Mills, but it was necessary that the cross complaint should be served upon Caine and Hooper and Wright, as they were parties affected by the allegations thereof. This cross-complaint was served, but not until October, 1896. Until such service the court would have jurisdiction over the parties but not over the subject-matter involved in said cross-complaint, so as to be able to determine the rights of the parties thereunder. White v. Patten, 87 Cal. 151.

Sec. 3231 does “not require the cross-complaint to be served within one year from the time of filing the complaint. It may be filed at the same time with the answer, or by permission of the court it may be filed at a subsequent date, and it must be served upon the parties affected thereby, and such parties may demur or answer thereto as to an original complaint. The cross-complaint by Duvall & Mills was filed Feb. 1, 1892, less than one year following the date of filing the notice of lien. The cross-complaint was therefore filed within one year from the time of filing the statement or notice of lien under the requirements of Sec. 21, Ch. 30, Laws 1890.

The time for serving the cross-complaint is not fixed by statute, but no unreasonable delay should be allowed for service thereof. It should be served within a reasonable time. What was a reasonable time in .this case was a question within the discretion of the trial court.

The motion of defendants Caine and 'Hooper to dismiss the cross-complaint for laches in the service thereof, and for want of prosecution was denied. We are not disposed to question this ruling. The cross-complaint was served long before the time of the trial, and defendants Caine and Hooper filed their answer thereto. The parties and the subject-matter was before the court, and the issue was determined against Caine and Hooper. C. L. U. 1888, Secs. 3214, 3678, 3231.

In Hibernia Sav. & Loan Soc. v. Fella, et al., 54 Cal, 598, the supreme co.urt set aside a judgment in favor of the cross-complainant, because the cross-complaint was not served, and the case was remanded with instructions to allow the defendant to serve her answer and cross-complaint upon the defendants affected thereby, after which they were to try the issues. The answer by way of cross-complaint set up matters involving the defendants’ right to a judgment lien upon the property in question.

As to the proof of the signature of the defendant Wright to the admission of the service of the. cross-complaint on him, the findings show that the admission of service was signed by defendant Wright. This finding is presumed to be supported by the evidence. C. L. U. 3214, 3678.

6. Appellants claim that the lien-does not relate back to the time when the first work was done, as the notice simply claims a lien on the premises for $2,812.31, with legal interest, from the time of the completion of the contract, which is alleged to be March 31,1891.

The cross-eomplainants must be held as concluded by their claim as set up in their complaint and cross-complaint. They claim a lien from the date of the completion of their contract, which was alleged to be March 31, 1891.

Under the statute, however, the lien may relate back to the time of the commencement of the work and the furnishing of materials. Morrison v. Carey-Lombard, 9 Utah, 70; Sess. Laws, 1890, Secs. 1 and 19, Ch. 30.

CROSS-APPEAL OP DHVALL. & MILLS.

In this case Duvall & Mills, the cross-complainants, recovered a judgment lien for the sum of $1,798.20, against Caine and Hooper, but without interest to the date of the decree. Duvall & Mills appeal from the judgment, and claim that the court erred in not awarding interest at eight per cent, from March 1, 1891, the date as alleged when the contract for work and material was completed, and ask a modification of the decree in this and other respects.

The court, by its findings, allows $1,798.20, as the just sum for which Duvall & Mills were entitled to a lien under their sub-contract, for material furnished and labor performed, but without interest.

Interest is given in money demands as damages for delay in payment. When it is reserved expressly in the contract, or is implied by nature of the premises, it becomes part of the debt and is recoverable as of right, but when it is given as damages, it is often a matter of discretion. Where the interest is recoverable, not as a part of the contract, but by way of damages, if the plaintiff has been guilty of laches in unreasonably delaying the prosecution of his case,. of unreasonable delay in filing his cross-complaint, or other unreasonable and unnecessarv. delay, it may properly be withheld, although the plaintiff may be entitled to recover the principal sum due him. The giving or withholding of interest being, under the circumstances, largely in the discretion of the court, it had a right to take into consideration the facts of the delay and laches, if any, of Duvall & Mills in filing their cross-complaint, and for that reason withhold interest and allow damages. Stewart v. Schell, 31 Feb. Rep. 65; Redfield v. Ystalfera Iron Co., 110 U. S. 174; Adams Express Co. v. Milton, 11 Bush 49; Baum v. Dalzell, 3 C. & P. 356.

The findings show that Duvall & Mills delayed the service of their cross-complaint for about four years after it was filed. It is'quite probable that the trial was delayed for this cause, although there is no finding to this effect, the fact of the delay appears. The court could properly refuse to grant interest because of such laches, and yet find in plaintiff’s favor for the amount of damages due on their contract. It appears, however, that there is no bill of exceptions in this case, and there is no testimony before this court. In such case the general rule is that where the evidence is not before the court on appeal, the correctness of the findings will not be questioned, except in so far as they are contradictory or conflicting. 2 Enc. of P. & Pr. p. 487; Morrow v. Sanders, 77 Wis. 77; Clayball v. Hennessey, 2. Ill. App. 124.

The court found that Duvall & Mills were entitled to a lien for $1798.20, without interest. This being the finding of an ultimate fact, without contradiction, and there being no evidence before this court, the presumption follows that the findings are supported by evidence that would justify the court in withholding interest on the amount of the lien prior to the date of the decree. Blethen v. Blake, 44 Cal. 117; Smith v. Acker, 52 Cal. ; Smith v. James, 131 Ind. 131; Perry v. Quackenbush, 105 Cal. 299.

We find no merit in the other assignments of error contained in the cross-appeal.

Upon the whole record we are of the opinion that the appeal of Duvall & Mills should be dismissed, with costs to defendants Caine and Hooper, and that the decree of the district court should be affirmed, with costs, to the cross-complainants Duvall & Mills, and it is so ordered,

Bart,ch, C. J. and Baskin, J. concur.