Dalbey Bros. Lumber Co. v. Crispin

12 N.W.2d 277, 234 Iowa 151, 1943 Iowa Sup. LEXIS 92

• Court: Supreme Court of Iowa
• Decided: December 14, 1943
• Docket: No. 46305.
• Status: Published

Opinions

Wennerstrum, J.

Plaintiff, in an action in equity, sought personal judgment against the defendant owners of real property and the contractor who erected a residence and garage for them, for materials claimed to have been furnished the defendant owners, and, in this action, also sought to foreclose a mechanic’s lien filed by the plaintiff and asked that liens of other materialmen be held junior to that of plaintiff. Cross-petitions were also filed by some of the defendants who had furnished materials and supplies in the construction and completion of the residence and garage. The trial.court entered a judgment in rem in favor of the plaintiff against the premises owned by the defendant owners of the real estate affected by the mechanic’s lien filed by plaintiff in the amount of $724.67, with interest. The court also entered judgment in rem and established and confirmed the liens of O’Rourke Construction Materials Company and Louis Zane, establishing the priority of the liens of the named materialmen in the order named. The court denied the plaintiff and cross-petitioners any personal judgment against the defendants Harlan F. Crispin and Elizabeth M. Crispin. Personal judgments were entered against E. W. Ewell, the contractor, in favor of plaintiff, and also in favor of O’Rourke Construction Materials Company and Louis Zane. The court confirmed the lien of H. T. Rasmussen but denied to him the right to have the property involved sold under his lien or to share in the proceeds of any sale because he had not asked for such relief. The defendants Harlan F. Crispin and Elizabeth M. Crispin have appealed from the decree entered by the trial court.

The appellants, Harlan F. Crispin and Elizabeth M. Crispin, his wife, are joint owners of a lot in a suburban portion of the city of Des Moines. They entered into an agreement with Ewell, a contractor, to build a house and garage on a lot owned by them. Lumber and materials for the construction of the improvements made on the Crispin lot were purchased from the plaintiff appellee by Ewell. It is claimed in the pleadings that Ewell acted as agent for the Crispins in the purchase of the materials. Testimony was introduced that the lumber and materials were delivered for the construction of the house and garage by the lumber company. A greater portion of the lumber-and-materials account was paid through financing plans made by the Crispins through joint arrangements with the contractor. The unpaid balance due plaintiff appellee, which in volved some millwork and other materials, was in the amount of $724.67.

There was a balance due on the claim of the O’Rourke Construction Materials Company of $108.55 and this company filed a mechanic’s lien. The balance due H. T. Rasmussen for materials and supplies, and for which a mechanic’s lien was filed, was $180. The lien claim of Louis Zane, who also had furnished materials and supplies, was for a balance due in the amount of $66. ■

I. It is the contention of the appellants that the court erred in establishing* and confirming the lien of Dalbey Brothers Lumber Company and they maintain that the mechanic’s lien filed did not comply with the statutory requirements for the preservation of such a lien in that no verified statement was filed.

Our consideration of the appellants’ claim that no verified statement was filed by the Dalbey Brothers Lumber Company necessitates the setting forth, in part, of their mechanic’s lien. The lien proper was signed “Dalbey Bros. Lumber Company, by Robert T. Dalbey, Credit Manager,” ahd the remainder of the lien that was filed is as hereinafter set forth:

‘ ‘ State of Iowa, Polk County, ss:

I, Robert T. Dalbey, on oath depose and say that I am Robert T. Dalbey, Credit Manager of Dalbey Bros. Lumber Company whose name is affixed to the within statement for a Mechanic’s Lien, as therein stated; that I have read the within statement, and know the contents thereof, and the statements and allegations therein made are true, as I verily believe.

Robert T. Dalbey.

Subscribed and sworn to before me by..this.day of ., A. D. 19.

Notary Public in and for Co. Iowa.

State of Iowa, Polk County, ss:

On this Tenth day of April, A. D. 1941, before me, lone Hedlund, a Notary Public in and for Polk County, Iowa, personally appeared Robert T. Dalbey, to me known to be the person named in and who executed the foregoing instrument and acknowledged that he executed the same as his voluntary act and deed.

lone Hedlund,

[Seal] Notary Public in and for Polk County, Iowa.”

Section 10277 of the 1939 Code provides that:

“Every person who wishes to avail himself of a mechanic’s lien shall file with the clerk of the district court of the county in which the building to be charged with the lien is situated a verified statement or account of the demand due him, after allowing all credits * *

It will be observed that a “person who wishes to avail himself of a mechanic’s lien shall file * * * a verified statement or account of the demand due him.” The previously referred-to claimed error necessitates our consideration of the question whether or not that portion of the lien heretofore quoted can and should be construed to have been “verified.” It will also be observed that the notary’s certificate did not state that the person who had signed the statement as to the correctness of the mechanic’s lien had subscribed his signature and that it had been sworn to before a notary. The form used by the notary was to the effect that the person who signed the statement “executed the foregoing instrument and acknowledged that he executed the same as his voluntary act and deed.” The signature of the notary and her seal were attached to what may be referred to as an acknowledgment form. Under these circumstances, was the mechanic’s lien verified? It is our conclusion that the affiant, Robert T. Dalbey, in signing his name to the statement as to the correctness of the lien and account filed, was, as is shown by the certificate itself, • conscious of the fact that he was swearing tó the correctness of the lien and account, and that the lien should not be held invalid because of the statement of the. notary before whom the affiant appeared. This conclusion finds support in the statement in 1 Am. Jur., Affidavits, section 13, where it is stated:

“If the attention of the person making' the affidavit is called to the fact that it must be sworn to and, in recognition of this, he is asked to do some corporal act and he does it, the instrument constitutes a statement under oath, irrespective of any other formalities. ’ ’

The statement found in the case of State v. Hulsman, 147 Iowa 572, 573, 126 N. W. 700, 701, although dealing with a different situation, seems quite applicable to the facts that are presented to us in this appeal. It is there stated:

“The statute makes no general, requirement as to the form of an oath. The purpose of an oath is to secure the truth, and hence any form thereof which is ordinarily calculated to appeal to the conscience of the person to whom it is administered, and by which he signifies that his conscience is bound, is sufficient. 27 Am. & Eng. Enc. of Law, 682; State v. Gay, 59 Minn. 21 (60 N. W. 676, 50 Am. St. Rep. 389); O’Reilly v. People, 86 N. Y. 154 (40 Am. Rep. 525); 2 Bouv. Law. Dict. 320; 30 Cyc. 1416.”

See, also, 39 Am. Jur., Oath and Affirmation, section 13, where it is stated:

“While a large liberty is given to the form of the oath, some form remains essential. Something must be present to distinguish between the oath and the bare assertion. An act must be done and clothed in such form as to characterize and evidence it. This is so for the double reason that only by some unequivocal form could the sworn' be distinguished from the unsworn averment, and the sanctions of religion add their solemn and binding force to the act. Hence, to make a valid oath, there must be in some form, in the presence of an officer authorized to administer it, an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath. ’ ’

The holding in the case of Atwood v. State of Mississippi, 146 Miss. 662, 111 So. 865, 51 A. L. R. 836, 838,. is authority for the statement heretofore quoted and the conclusions we have heretofore expressed.

We feel that the statement made in the case of Stoddard v. Sloan, 65 Iowa 680, 684, 685, 22 N. W. 924, 926, also has application in the present situation. It is there stated:

“It is not denied, as we understand, that the affidavit and. jurat would lie presumptive evidence of what they purport to show, if the jurat expressly stated that the affidavit was subscribed and sworn to by Thomas J. Stone. The question to be determined is whether the jurat, notwithstanding Stone’s name is not expressly in it, really shows the same thing. It shows that the affidavit is subscribed and sworn to. Now, the affidavit purports to be Stone’s, and no one’s else. A writing is not subscribed, unless it is signed by the person whose obligation or other paper it purports tó be. If some other person than Stone, and without any authority from him, had signed Stone’s name, the affidavit could not properly be said to be subscribed at all. The jurat, then, must be taken to mean that the affidavit was subscribed by Thomas J. Stone. Now, the affidavit shown to be subscribed by Stone purports to be his statement made by him in the first person, and under oath. Such an affidavit could not, we think, in any proper sense, be said to be sworn to by a person other than Stone. We have to say, then, that we do not think that the objection is well taken.”

And so in the instant .case, it is shown that Robert T. Dalbey signed and thus subscribed to. the statement wherein he stated the account attached to the mechanic’s lien filed was correct. It is also shown to our satisfaction, on the authority of the citations heretofore set forth, that the lien was “sworn to.” Under all the circumstances, and the record presented, we hold that the lien was “verified.”

Further support for our holding that there was a proper verification of the mechanic’s lien filed is found in 1 Am. Jur., Affidavits, section 19, where it is stated:

“The courts are not entirely agreed as to the effect of the omission of a jurat or a signature thereto upon the affidavit. According to the majority view, such an omission is not fatal to the validity of the affidavit, so long as it appears, either from the rest of the instrument or from evidence aliunde, that the affidavit was, in fact, duly sworn to before an authorized officer. This rule is based upon the principle that a party should not suffer by reason of the inadvertent omission of the officer to perform his duty. Under this view, an affidavit defective by rea .son. of the omission of the jurat of the officer’s signature may, upon proof of its authenticity, be cured by amendment. ’ ’

There was no amendment or correction of the acknowledgment form used, but it appears to us that, as before stated, the lienholder should not suffer by reason of the use of the wrong-form where under the circumstances the affidavit shows it was ■ under oath. For support of this holding, see 2 C. J. S., Affidavits, section 16, where it is stated:

“It is essential that an affidavit appear to be sworn to on its face unless the fact is otherwise shown * * * but the affidavit will be sufficient in this respect if either the body or jurat * * * or both, recite that affiant was sworn.’’

We do not believe the authorities cited by appellants support their contention.

II. Crispins, the appellants, contend that there is no proof of delivery of the items claimed to have been furnished and for which a mechanic’s lien was filed by the lumber company. The original tickets and memoranda of the sale and purchase of the items in question were introduced in evidence. We hold that this evidence n was admissible in support of the lien claim of the appellee lumber company. Tickets and memoranda of a like nature have been held admissible as proof of books of account. Younker Bros. v. Meredith, 217 Iowa 1130, 253 N. W. 58. See, also, Graham & Corry v. Work, 162 Iowa 383, 141 N. W. 428; Emeny Auto Co. v. Neiderhauser, 175 Iowa 219, 157 N. W. 143. Proof of similar accounts has been held to show delivery. Annotation 27 A. L. R. 1458, 1462.

III. It is the further claim of the appellants that there is a variance between the pleadings and the proof of plaintiff! appellee’s claim for a lien and that therefore it should not be established. Our review of the evidence presented and the pleadings causes us to come to the conclusion that there is no merit in this contention.

IV. Further claimed errors asserted by the appellants pertain to the mechanic’s-lien claims filed by the O’Rourke Construction Materials Company, H. T. Rasmussen, and Louis Zane. These last-referred-to parties, who are appellees, have not favored this court with a brief and argument. It is appellants’ contention that the O’Bourke Construction Materials Company’s claim should not have been established and that there is a variance between the allegations of the cross-petition and the proof submitted. We do not find merit in this contention. It is also claimed that the trial court erred in establishing the lien in favor of H. T. Basmussen in that no cross-petition against the Crispins was filed and that Basmussen merely filed an amended and substituted answer. We find no error in that the decree merely established the lien of Basmussen but did not provide that this last-named party should participate in the benefits of any sale. It is also contended that this appellee withdrew his claim against Elizabeth Crispin, one of the joint owners of the property, and that it could not be established as a lien without affecting the other joint owner’s interest. We think there is no merit in this last contention except as hereinafter noted. Roxbury Painting & Decorating Co. v. Nute, 233 Mass. 112, 123 N. E. 391, 4 A. L. R. 680, 684. We hold that the lien of Basmussen cannot be upheld as to the interest of Elizabeth Crispin and that the decree should have so held. It is also claimed that the court erred in establishing a lien against the premises in favor of Louis Zane in that he had not pleaded that he had not been paid and that proof as to the allegations of the mechanic’s lien in the cross-petition was lacking. There is ample proof to support this mechanic’s lien. The filing of the lien and all the proceedings negative the assertion that Zane did not contend that there was an amount due him.

It is our conclusion that the decree entered by the court was correct except as heretofore noted. Under the circumstances, we hold that the decree as entered should be modified and affirmed and remanded for the entry of a decree in conformity with this opinion. — Modified and affirmed and remanded.

Mttlroney, C. J., and Mantz, Smith, Miller, and Hale, JJ., concur. SMITH and Mtller, JJ., also specially concur. Oliver, Garfield, and Bliss, JJ., dissent from Division I.