Lawson Supply Co. v. General Plumbing & Heating, Inc.

Utah Supreme Court

Lawson Supply Co. v. General Plumbing & Heating, Inc.

493 P.2d 607, 27 Utah 2d 84, 1972 Utah LEXIS 916

CourtUtah Supreme Court

DecidedJanuary 24, 1972

Docket12362

StatusPublished

Cited by12 cases

This text of 493 P.2d 607 (Lawson Supply Co. v. General Plumbing & Heating, Inc.) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lawson Supply Co. v. General Plumbing & Heating, Inc., 493 P.2d 607, 27 Utah 2d 84, 1972 Utah LEXIS 916 (Utah 1972).

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Opinions

CALLISTER, Chief Justice:

Defendants, Todd and Lignell, owners of an interest in land, entered into a contract with one Berg for the construction of an apartment house for the price of $460,000. These defendants did not obtain from Berg a bond in a sum equal to the contract price to assure payment for materials furnished under the contract as provided in § 14-2-1, U.C.A. 1953. Berg entered into a subcontract with General Plumbing & Heating, Inc., to perform the plumbing and supply [86]*86plumbing materials in accordance with the building contract. Lawson Supply Company, plaintiff, furnished price quotations to General Plumbing, and, thereafter, according to the findings of the trial court, plaintiff furnished and delivered materials to General Plumbing to the premises for the purpose of permitting these materials to be incorporated into the building being erected. Berg fully paid General Plumbing. However, General did not pay plaintiff for plumbing supplies and materials of the value of $8,200.20. Plaintiff recovered judgment for this sum, plus interest and costs against Todd and Lignell under § 14-2-2, U.C.A.1953, which provides for personal liability for owners of land who fail to obtain a bond under § 14-2-1.

On appeal, defendants contend that plaintiff was not a materialman within the provisions of the statutes. They assert that plaintiff was not furnishing materials under any specific contract for construction of a building and extending credit thereunder. They claim that the materials were furnished as an ordinary sale'in the usual course of trade as evidenced by an open account maintained by General with plaintiff for the past 20 years; and that plaintiff extended credit to the subcontractor, General Plumbing, and not to the contract job. Defendants rely on Crown Roofing and Engineering Co. v. Robinson,¹ wherein this court held that the trial court was justified in finding that a supplier was not a materialman, where there was no evidence that the supplier of the subcontractor was furnishing the material under any specific contract for the construction of a building.

Whether a supplier is a material-man within the purview of § 14-2-1, U.C. A.19S3, must be determined by the true nature of the relationship between the contractor or subcontractor and his supplier. The trial court must consider the evidence and determine whether the contractor purchased material for resale, and did, in fact, resell it, and incidental to that sale and delivery did install the same; or whether the contractor, under a contract for the construction, alteration or repair of the owner’s structure, and incidental thereto, purchased the material from the supplier to be incorporated in the improvement.²

In the Crown Roofing case,³ the trial court, in determining the true relationship between the supplier and subcontractor, found the accounting system of the supplier to be of evidentiary significance, i. e., the supplier extended credit to the subcontractor and not to the contract job. The trial court found that the subcontractor [87]*87purchased the hulk of his materials from the supplier, which he used in his roofing business generally; and the supplier, without regard to the subcontractor’s use of them, simply maintained an open account to reflect the purchases. There was no evidence that the supplier was furnishing the material under any specific contract for the construction of an improvement. Under such circumstances the supplier was found not to be a materialman.

In the instant action, the record substantiates the findings of the trial court that plaintiffs method of keeping records enabled it to identify the contract job to which it delivered the materials; that the materials supplied were not delivered to General on an open account but were delivered specifically for the apartment structure; and that plaintiff’s records adequately separated the supplies and materials for the apartment from other minor purchases made by General. The evidence ■clearly established that the materials were not supplied under a general purchase and sale agreement but that General, under a contract for the construction of a building and incidental thereto, purchased the material from plaintiff to be incorporated in the improvement. The trial court did not err in its determination the plaintiff was a materialman.

Defendants further assert that the trial court erred in allowing as costs the expenses incurred' by plaintiff in the taking of depositions.

Recoverable costs include the expense of taking depositions, unless it is made to appear the depositions were unnecessary. Whether the taking of a deposition was reasonably necessary to the protection of the party’s rights is a question primarily for the trial court to decide on all the facts and circumstances of the case. . . ,⁴

A test, which has been applied in determining the propriety of allowing as costs to the prevailing party the expense of a deposition taken by him, is whether the deposition was necessarily obtained in the sense that the taking of the deposition and its general content were reasonably necessary for the development of the case in the light of the situation then existing.⁵

Plaintiff took the depositions of defendants, Todd and Lignell, and general contractor, Berg. At the time of taking the depositions, plaintiff had filed a mechanic’s lien, and, under its theory of the case, the date of completion of the building, which was disputed, was of great significance. Subsequently, the trial court held that the lien was not timely filed. The foregoing illustrates but one of the [88]*88facts, which were discovered in the depositions, in the development of the case. The trial court, through its inclusion of the depositions in the costs, impliedly found them reasonably necessary to protect the plaintiff’s rights; there appeals to be no abuse of discretion involved therein.

The judgment of the trial court is affirmed. Costs are awarded to plaintiff.

TUCKETT and CROCKETT, JJ., concur.

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CALLISTER, Chief Justice:

Defendants, Todd and Lignell, owners of an interest in land, entered into a contract with one Berg for the construction of an apartment house for the price of $460,000. These defendants did not obtain from Berg a bond in a sum equal to the contract price to assure payment for materials furnished under the contract as provided in § 14-2-1, U.C.A. 1953. Berg entered into a subcontract with General Plumbing & Heating, Inc., to perform the plumbing and supply [86]*86plumbing materials in accordance with the building contract. Lawson Supply Company, plaintiff, furnished price quotations to General Plumbing, and, thereafter, according to the findings of the trial court, plaintiff furnished and delivered materials to General Plumbing to the premises for the purpose of permitting these materials to be incorporated into the building being erected. Berg fully paid General Plumbing. However, General did not pay plaintiff for plumbing supplies and materials of the value of $8,200.20. Plaintiff recovered judgment for this sum, plus interest and costs against Todd and Lignell under § 14-2-2, U.C.A.1953, which provides for personal liability for owners of land who fail to obtain a bond under § 14-2-1.

On appeal, defendants contend that plaintiff was not a materialman within the provisions of the statutes. They assert that plaintiff was not furnishing materials under any specific contract for construction of a building and extending credit thereunder. They claim that the materials were furnished as an ordinary sale'in the usual course of trade as evidenced by an open account maintained by General with plaintiff for the past 20 years; and that plaintiff extended credit to the subcontractor, General Plumbing, and not to the contract job. Defendants rely on Crown Roofing and Engineering Co. v. Robinson,¹ wherein this court held that the trial court was justified in finding that a supplier was not a materialman, where there was no evidence that the supplier of the subcontractor was furnishing the material under any specific contract for the construction of a building.

Whether a supplier is a material-man within the purview of § 14-2-1, U.C. A.19S3, must be determined by the true nature of the relationship between the contractor or subcontractor and his supplier. The trial court must consider the evidence and determine whether the contractor purchased material for resale, and did, in fact, resell it, and incidental to that sale and delivery did install the same; or whether the contractor, under a contract for the construction, alteration or repair of the owner’s structure, and incidental thereto, purchased the material from the supplier to be incorporated in the improvement.²

In the Crown Roofing case,³ the trial court, in determining the true relationship between the supplier and subcontractor, found the accounting system of the supplier to be of evidentiary significance, i. e., the supplier extended credit to the subcontractor and not to the contract job. The trial court found that the subcontractor [87]*87purchased the hulk of his materials from the supplier, which he used in his roofing business generally; and the supplier, without regard to the subcontractor’s use of them, simply maintained an open account to reflect the purchases. There was no evidence that the supplier was furnishing the material under any specific contract for the construction of an improvement. Under such circumstances the supplier was found not to be a materialman.

In the instant action, the record substantiates the findings of the trial court that plaintiffs method of keeping records enabled it to identify the contract job to which it delivered the materials; that the materials supplied were not delivered to General on an open account but were delivered specifically for the apartment structure; and that plaintiff’s records adequately separated the supplies and materials for the apartment from other minor purchases made by General. The evidence ■clearly established that the materials were not supplied under a general purchase and sale agreement but that General, under a contract for the construction of a building and incidental thereto, purchased the material from plaintiff to be incorporated in the improvement. The trial court did not err in its determination the plaintiff was a materialman.

Defendants further assert that the trial court erred in allowing as costs the expenses incurred' by plaintiff in the taking of depositions.

Recoverable costs include the expense of taking depositions, unless it is made to appear the depositions were unnecessary. Whether the taking of a deposition was reasonably necessary to the protection of the party’s rights is a question primarily for the trial court to decide on all the facts and circumstances of the case. . . ,⁴

A test, which has been applied in determining the propriety of allowing as costs to the prevailing party the expense of a deposition taken by him, is whether the deposition was necessarily obtained in the sense that the taking of the deposition and its general content were reasonably necessary for the development of the case in the light of the situation then existing.⁵

Plaintiff took the depositions of defendants, Todd and Lignell, and general contractor, Berg. At the time of taking the depositions, plaintiff had filed a mechanic’s lien, and, under its theory of the case, the date of completion of the building, which was disputed, was of great significance. Subsequently, the trial court held that the lien was not timely filed. The foregoing illustrates but one of the [88]*88facts, which were discovered in the depositions, in the development of the case. The trial court, through its inclusion of the depositions in the costs, impliedly found them reasonably necessary to protect the plaintiff’s rights; there appeals to be no abuse of discretion involved therein.

The judgment of the trial court is affirmed. Costs are awarded to plaintiff.

TUCKETT and CROCKETT, JJ., concur.

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493 P.2d 607, 27 Utah 2d 84, 1972 Utah LEXIS 916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawson-supply-co-v-general-plumbing-heating-inc-utah-1972.

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