Fields v. Daisy Gold Mining Co.

69 P. 528, 25 Utah 76, 1902 Utah LEXIS 42

Opinion

MINER, C. J.,

after stating tbe facts, delivered tbe opinion of tbe court.

Tbe testimony tends to show, as tbe court found, that tbe goods were ordered by tbe mining company as needed from time to time, and were furnished upon a continuous, open, running account. Each order for materials did not constitute a complete transaction of itself, but rather a series 1 of continuous transactions, showing a connected, continuous course of dealing, which created an extended debt and credit account, upon which payments were made from time to time without any stipulated agreement as to the time of payment, but with an invoice accompanying each bill delivered, followed by a'monthly statement of the account at the commencement of each month showing the condition of the account at that date. By section 2000, Revised Statutes 1898, a trust deed becomes notice to lienholders from the time it is filed for record. Under section 1372, Id., material-men are given liens for materials furnished. Section 1381 provides that: “The provisions of this chapter shall apply to all persons who shall do work or furnish materials for the working, preservation, or development of any mine, lode, mining claim, or deposit yielding metals or minerals of any kind, or for the working, preservation, or development of any such mine, lode, or deposit in search of such metals or minerals, and to all persons who shall do work or furnish materials upon any shaft, tunnel, incline, adit, drift, drain or other excavation of any such mine, lode or deposit.” Section 1384 provides that: “The liens provided for herein are preferred to any lien, mortgage, or other incumbrance which may have attached subsequent to the time when the building, improvement, or structure was commenced, work done, or materials were commenced to be furnished; also to any lien, mortgage, or other incumbrance of which the lienholder had no notice and which was unrecorded at the time the building, improvement, or structure was commenced, work done, or materials commenced to be furnished.” Section 1385 provides that: “The liens herein provided shall relate back to and take effect as of the time of the commencement to do work upon and furnish materials on the ground for the structure or improvement, and shall have priority over any lien or incum-branee subsequently intervening, except a lien herein provided for of the same class, or which may have been created prior thereto, which was not then recorded and of which the lienor under this chapter did have actual notice.” Under these provisions of the statute the lien for material commenced to be furnished to the mine on. November 1, and continued to be furnished from time to time to February 8, following, related back and took effect as a contract as of tbe time of tbe commencement to fnrnisb materials, and bad priority over any subsequent lien created by tbe trust deed recorded on December 13, 1899. This court bas frequently beld, under similar statutes, that tbe lien bas its inception from tbe date of tbe first material furnished. Culmer v. Caine, 22 Utah 216, 61 Pac. 1008; Morrison v. Carey-Lombard Co., 9 Utah 70, 33 Pac. 238; Lumber Co. v. Partridge, 10 Utah 322, 37 Pac. 572. Tbe bill of exceptions does not purport to contain or set forth tbe substance of all tbe evidence produced at tbe 2 trial. Therefore it will be presumed upon an appeal that there was sufficient proof to support tbe findings and decision of tbe trial court. Mining Co. v. Gisborn, 21 Utah 73, 59 Pac. 518; Cochrane v. Bussche, 7 Utah 233, 26 Pac. 294; Culmer v. Caine, 22 Utah 216-224, 61 Pac. 1008; Snyder v. Emerson, 19 Utah 319, 321, 57 Pac. 3400; 2 Enc. Pl. and Prac., 41.

Tbe questions as to whether tbe material furnished to tbe mine was furnished under separate contracts, and as to whether it was furnished under a contract creating a continuous running account, were questions of fact, and were passed upon by tbe trial court adversely to the contention of tbe appellants, and we are not disposed upon this record to assume tbe right to question tbe correctness of tbe decision rendered. In general, we consider tbe proper rule to be that, when all tbe items in tbe account relate to one continuous transaction 3 between tbe same parties, although tbe goods were delivered on separate orders, and at different dates, within short intervals of each other, and tbe dealings of the parties indicate an expectation to continue such business relations, tbe transactions constitute a continuous running account, regardless of intervening irregular monthly balances in tbe account, which dates from the date of the last item deliv ered, and relates back to tbe time of the first delivery of material under that course of dealing or contract shown. This presumption may be overcome and rebutted by the nature and course of dealing by the parties or by facts shown. If the materials were furnished for separate and distinct purposes, under distinct separate contracts or orders requiring cash pay- ” ment under circumstances tending to rebut dealings of a continuous nature, then there would be no presumption of a continuous account, and, in the absence of an express contract, a right for a lien, if any, would date from the time of the commencement to furnish materials for the different separate contracts on each separate order. Upon this subject it is said in 2 Jones, Liens, section 1435, as follows: “If a material-man begins to furnish materials for the erection or repair of a building without any specific agreement as to the amount to be furnished, but there is a reasonable expectation that further material will be required of him, and he is afterwards called upon from time to time to furnish the same, he is generally entitled to a lien as under an entire contract. In determining a particular case the character of the account, the time within which the work was done or the materials furnished, and the purpose in doing the work or furnishing the materials afford a proper ground for the presumption either that there was or was not an understanding from the commencement that the work should be done or the materials should be furnished whenever required. If the work was done or the materials furnished for separate and distinct purposes, or under distinct contracts or orders, though in executing one and the same contract with the owner, there is no presumption of a continuous account, and the right of lien must date from the time of doing the different jobs of work or furnishing the different parcels of materials. But if there was a continuous dealing and running account, and the work was done and the materials furnished at short interval's, and were appropriate to the condi tion and progress of the building, a presumption arises that it was understood from the beginning that the claimants were to do the work or furnish the materials for the construction of the building as the same should be required; and in such case the last item of the account is the date from which the limitation of the time of filing of the lien is to be taken.” In section 1436 it is stated that: ‘‘Where it is to be inferred from the evidence that all the articles furnished by a contractor for the construction or repair of a house or other improvement were furnished under one contract, it is immaterial that the furnishing of the articles may have extended over a long period, or that several months may have elapsed between two items of the account. Where it is specially agreed or impliedly understood between tl^e parties that the account is to be kept open and continued as one and the same continuous transaction and course of dealing, the account will be considered as one continuous account and one demand.” Supply Co. v. Wells (Mont.), 40 Pac. 78; Lamb v. Hanneman, 40 Iowa 41; Kearney v. Wurdeman, 33 Mo. App. 447; Fulton Iron Works v. North Center Creek Mining & Smelting Co., 80 Mo. 265; Fidelity Insurance, Trust & Safe Deposit Co. v. Roanoke Ins. Co. (C. C.), 81 Fed. 451; Hardware Co. v. McCarty (Colo. App.), 50 Pac. 750; 15 Am. and Eng. Enc. Law (1 Ed.), 74; Phil. Mech. Liens, p. 566; O’Leary v. Burns, 53 Miss. 171. Part payment and settlement do not necessarily defeat the running nature of an account upon which a lien is filed. Craddock v. Dwight, 85 Mich. 587, 48 N. W. 644; Cox v. Railroad Co., 44 Cal. 18; Malone v. Mining Co., 76 Cal. 578, 18 Pac. 772; Nason v. Power Co. (Wash.), 49 Pac. 235; Griffin v. Seymour (Colo. App.), 63 Pac. 809. The mining company opened an account with the hardware company for materials for operating and developing its mine. It was an open account, and materials were ordered and furnished on demand, and the account could be terminated by either party at pleasure. Under the statute and decisions of this court the hard ware company bad a lien upon tbe mine for tbe materials furnished upon tbe facts as found by tbe court. Any other construction based upon tbe facts found would tend to render tbe rights of those furnishing material and labor uncertain and insecure, and the tendency would be to unsettle tbe practice with reference to liens, and greatly impair and interrupt business dealings arising under tbe lien laws of tbe State.

Tbe appeal of tbe receiver, A. T. Moon, was not before this court upon this bearing, because bis appeal bad not been perfected under tbe rules of this court. Both actions, which were beard together, are held determined by this decision.

Tbe decree of tbe district court is affirmed, with costs.

BABTOH, L, concurs. BASKIN, J., dissents.