R & L Supply, Ltd. v. Evangelical Lutheran Good Samaritan Society

462 N.W.2d 515, 1990 S.D. LEXIS 160, 1990 WL 171530
CourtSouth Dakota Supreme Court
DecidedNovember 7, 1990
Docket16967
StatusPublished
Cited by4 cases

This text of 462 N.W.2d 515 (R & L Supply, Ltd. v. Evangelical Lutheran Good Samaritan Society) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
R & L Supply, Ltd. v. Evangelical Lutheran Good Samaritan Society, 462 N.W.2d 515, 1990 S.D. LEXIS 160, 1990 WL 171530 (S.D. 1990).

Opinion

WUEST, Justice.

Evangelical Lutheran Good Samaritan Society (Evangelical), through Mueller Lumber Company of Mitchell, South' Dakota on tender of defense, appeals from an order of foreclosure of a mechanic’s lien on the improved real property of Evangelical. We affirm’ in part, reverse in part, and remand.

Evangelical Lutheran Good Samaritan Society owns and operates a nursing home in DeSmet, South Dakota. Evangelical hired Mueller Lumber Company (Mueller Lumber) to construct an addition to its nursing home. Mueller Lumber then hired Meester Plumbing and Heating, Inc., (Meester) as a subcontractor to do the plumbing and mechanical work on the nursing home project (hereafter referred to as the DeSmet project). In early 1988, Mees-ter began purchasing materials and supplies for this project from R & L Supply, Ltd. (R & L) on an open account, that is, R & L would charge purchases to Meester’s one, single account without regard for which particular project the materials or supplies were designated. R & L and Meester had conducted business in this manner for at least the last fifteen years. Meester was delinquent on its open account with R & L since late 1987, which necessitated R & L’s carrying forward Meester’s debt into 1988.

At the time Meester was engaged in the DeSmet project and purchasing needed materials from R & L, Meester was also engaged in a number of other construction projects. It was the practice of Meester to commingle the funds received from prime contractors on the various projects and issue checks from this commingled account to its suppliers.

R & L furnished Meester materials and supplies for the DeSmet project worth $34,-786.54. Meester contends it paid R & L $32,038.76 for these materials and supplies by four separate checks issued from its commingled account:

A. June 14, 1988, in the sum of $10,-000.00.
B. July 18, 1988, in the sum of $9,329.76.
C. August 11, 1988, in the sum of $4,709.00 (designated DeSmet).
D. November 10, 1988, in the sum of $8,000.00 (designated DeSmet).

Because Meester and R & L were located only a few blocks apart, these checks were hand delivered, as was customary in their business relationship.

In mid-November 1988, R & L segregated Meester’s open account into specific job *517 accounts in preparation for filing mechanic’s liens on the several jobs. With regard to the DeSmet account, which was segregated from the open account, R & L applied the total of the August 11th and November 10th checks, $12,709.00, toward the DeSmet project debt. This was done by randomly selecting invoices so as to get as close to the $12,709.00 figure as possible. 1 The remaining invoices R & L considered unpaid, and although R & L knew the money for the June 14th and July 18th checks had come from Mueller Lumber, the prime contractor on the DeSmet project, it nevertheless applied those funds to extinguish debts for materials other than those supplied to the DeSmet project.

On December 31, 1988, Jeff Scott of Meester and Robert Larson of R & L met to discuss R & L granting a lien waiver to Meester on the materials used in the DeSmet project. Mr. Scott brought to this meeting the four checks previously written to R & L, however, “DeSmet” now appeared in the memo portion of all the checks. In disbelief, Mr. Larson inquired at R & L’s bank and was informed that “DeSmet” was not present in the memo portion of the June and July checks on the day those checks were processed by the bank. It was revealed at trial that after return from the bank, “DeSmet” was written in the memo portion of the June and July checks by the secretary of Meester for bookkeeping purposes.

On January 24, 1989, R & L gave Mees-ter a lien waiver for $12,709.00 on the invoices which had been previously segregated from Meester’s open account and considered paid by the August 11th and November 10th checks. On March 28, 1989, R & L filed a mechanic’s lien in the amount of $22,077.46 on the improved real property of Evangelical in DeSmet. Attached to the mechanic’s lien were those invoices not selected by R & L as paid by the August 11th and November 10th checks.

R & L brought an action against Evangelical and Meester to foreclose its mechanic’s lien. Evangelical tendered the defense of this action to Mueller Lumber, which accepted the tender. A trial was held and the court concluded that R & L’s application of Meester’s checks was proper, that R & L’s mechanic’s lien was valid and that the invoices attached to the mechanic’s lien constituted an itemized account in accordance with law.

Evangelical, through Mueller Lumber on tender of defense, contends that:

I.R & L’s application of the June 14th and July 18th checks to extinguish debts on Meester’s open account other than the debts of the DeSmet project was improper because R & L knew the source of those funds was Mueller Lumber and Evangelical,
II.R & L’s mechanic’s lien is void because R & L knowingly overstated the amount that was due, and
III.R & L’s mechanic’s lien did not contain an itemized statement of account as required by SDCL 44-9-16(7).

We address these contentions seriatim.

I.

Larson Concrete Co., Inc. v. Stroschein, 353 N.W.2d 354 (S.D.1984) (Fosheim, C.J., dissenting; Wollman, J., concurring in part, dissenting in part) is dispositive of the issue whether R & L properly applied the funds from the June and July payments. In Larson, a contractor received payment in full from the owner of real property upon which the contractor was working and commingled such payment in a single account with other payments from other projects. The contractor then issued a check to the supplier of the materials for the owner’s project. The check covered only part of that amount due the supplier for materials furnished to the owner’s project. The contractor maintained an open account with the supplier, and after receiving the partial payment, the supplier credited the contractor’s open account with *518 out regard to any specific project. Upon default by the contractor, the supplier filed a mechanic’s lien on the owner’s improved real property and brought a foreclosure action.

We agreed with the trial court in the foreclosure action that SDCL 20-4-7, -8, -9 contain the rules for the application of open account payments, even where third parties are involved. However,

as a matter of law the statutes do not preclude ... consideration of equitable principles, nor the exercise of ... discretion in determining the most just and equitable application of a payment on an open account.

Larson,

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462 N.W.2d 515, 1990 S.D. LEXIS 160, 1990 WL 171530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/r-l-supply-ltd-v-evangelical-lutheran-good-samaritan-society-sd-1990.