Skyrme v. Occidental Mill & Mining Co.

8 Nev. 219

• Court: Nevada Supreme Court
• Decided: January 15, 1873
• Status: Published

Opinion

By the Court,

Hawley, J. :

This is an action to foreclose thirty nine mechanics’ liens, thirty-eight of which were assigned to plaintiff to enable him to commence this suit. The liens were claimed by plaintiff and his assignors, as miners, under the act of 1867. (Stats. 1867, 48, Sec. 1.) The appeal is from an order of the court refusing appellants a new trial.

The complaint regularly sets- forth the fact, in separate counts, that each assignor performed certain work and labor on the mine owned by the Occidental Mill and Mining Company, a corporation, defendant in this suit, between the first day of May, 1870, and the twenty-third day of October, 1870; .that within sixty days after the completion of the work each assignor filed in the'office of the county clerk of Storey County his account and demand properly verified, together with a correct description of the property to be charged with his lien; also his notice of intention to claim a lien upon the property therein described as required by Sec. 2 of the act of 1861, (Stats. 1861, 35) and closed with an averment that each assignor, “by reason of the work and labor so done as aforesaid and by complying with the provisions of the said acts of the legislature of the State of Nevada, acquired a valid lien upon the said * * mining-claim * * which lien remains wholly unsatisfied.”

There is no averment in the complaint as to the time when the liens were filed, nor does it appear therefrom that the liens which were assigned to plaintiff were filed within six months prior to the filing of the complaint. For this omission appellants claim that the complaint is entirely destitute of any facts showing the existence of a lien at the time of the commencement of this action. Appellants did not interpose any demurrer to plaintiff’s complaint; but appeared and filed an answer, denying (with other denials) that either of the assignors “ever filed or there was recorded in the office of the county clerk of Storey County any just or true account of the demand due him from the said company defendant, for the work and labor mentioned in said complaint, or ever complied with the provisions of the acts of the legislature or any of them mentioned in said complaint, or ever acquired any lien upon the property or premises or any part thereof mentioned in said complaint, or ever sold, assigned, transferred or set over to the plaintiff any lien upon the said property * * * or that the plaintiff ever vfas the owner or holder of any lien thereon” derived from the assignors or either of them.

If we were to apply the strict rules of pleading to this complaint as in other civil actions, it might be defective in not stating the date when the liens were hied so as to show upon its face that the suit was commenced within six months thereafter. But we are of opinion that this omission is one which should have been taken advantage of by demurrer. After issue has been joined and a decision rendered upon the merits, it is the duty of appellate courts to support the pleading by every legal intendment if there be nothing material in the record to prevent it. Stats. 1869, 206, Sec. 71; McManus v. Ophir Silver M. Co., 4 Nev. 18; Meadow Valley Mining Co. v. Dodds, 6 Nev. 264; 1 Van Santvoord’s Plead. 834.

We are also of the opinion that the sufficiency of this complaint is to be determined by the statute. The statute creating the right whereby liens are acquired also provides the manner in which they may be enforced. Section 7 of the act of 1861 provides that “said liens maybe enforced by suit in any court of Competent jurisdiction on setting forth in the complaint the particulars of such demand, with a description of the premises sought to be charged with said lien.” Stats. 1861, 37. The same language is contained in Sec. 9 of the act of March 4, 1871. Stats. 1871, 126. While the statute provides for a formal suit, it evidently contemplates a special proceeding in regard to the enforcement of mechanics’ liens. It requires the plaintiff at the time of commencing his action to cause a notice to be published notifying’’ lien-holders to appear in court on a certain day and exhibit proof of their liens, at which time the court is required to proceed in a summary way to determine said liens and all liens not then presented are deemed to be waived in favor of those that are exhibited. No default can be taken so as to avoid the necessity of proving the liens'. Considering the averments in the complaint with special reference to the act of the legislature, we are of opinion that there is a substantial compliance with the requirements of the statute.

Appellants claim that the liens are not assignable. The decisions upon this question differ with the construction of statutes and the different views entertained by judges in the several states. The position contended for by appellants is fully sustained in Caldwell v. Lawrence, 10 Wis. 331, and Pearson v. Tinker, 36 Maine, 387. The conclusion arrived at in both of these cases was that a mechanic’s lien being the creature of the statute simply conferred a personal right which could not be transferred, and hence that such liens could only “be enforced in the name of the party to whom it accrued. ”

In Tuttle v. Howe, 14 Minn. 150, it was held that the lien of a mechanic or material man might be assigned and that the assignee, in his own name, might maintain an action to enforce the same. Berry, J., in delivering the opinion of the court, said: “The lien law is designed for the protection of the material man, the mechanic and other persons performing labor upon buildings. As an assignment is not prohibited, and there is nothing in the nature of a lien which would render its transfer improper or injurious, and as the lien is wholly a creature of statute, the statute should be so construed (if it fairly may be) as to make the protection which it designsJ;o afford as valuable and effectual as possible. And upon these grounds we think the assignability of mechanics’ liens ought to be sustained if fair construction will permit it. ”

We do not think the authorities cited in support of Caldwell v. Lawrence sustain the decision in that case. It is true, that in Daubigny v. Duval, (5 Term R. 603) the court said: “A lien is a personal right and cannot be transferred to another.” But the court was considering an entirely different character of liens- than those provided for in our statute to secure mechanics and other laborers. The only principle decided in Daubigny v. Duval is that a factor has no right to pledge the goods of his principal. But this rule is subject to exceptions as shown by Urquhart v. McIver, 4 Johns. 102; McCombie v. Davies, 7 East. 5, cited in Caldwell v. Lawrence.

In McCombie v. Davies, Lord Ellenborough, C. J., said “that nothing could be clearer than that liens were personal, and could not be transferred to third persons by any tortious pledge of the principal’s goods * * *. His lordship then, after consulting with the other judges, declared that the rest of the court coincided with him in opinion that no lien was transferred by the pledge of the broker in this case, and added that he would have it fully understood that his observations were applied to a tortious transfer of the goods of the principal by the broker undertaking to pledge them as his own; and not to the case of one who intending to give a security to another to the extent of his lien, delivers over the actual possession of goods on which he has the lien to that other, with notice of his lien,’ and appoints that other as his servant to keep possession of the goods for him; in which case he might preserve the lien.”

The statute of Maine in regard to enforcing mechanics’ liens is radically different from the statute of this State. In the "Wisconsin statute there is a provision that the lien claimant may proceed to recover his lien by a “personal action against the debtor.” The statute of Minnesota also differs from the statute of this State in several particulars. The law in regard to mechanics’ liens is a constant subject of legislative action; and the decisions of courts in the various states in regard thereto should have but little weight except when applied to the special statute to which they refer. The statute, under which the liens in the present action were filed, is entirely silent upon the question of the assignabilityof said liens; and in our opinion no substantial reason exists why, under the law and upon the facts shown by the evidence in this case, such liens should not be- assignable so as to give a right of action in the assignee.

The liens were assigned to plaintiff to enable him to bring the suit in his own name for the benefit of each lien-holder. Each assignor was to bear his proportion of the expenses incurred in the prosecution of the suit, and each to share pro rata in the amount eventually realized. The plaintiff, as the agent of the several lien-holders, might have proved up their liens without the assignment. But an assignment having been made, we think the assignee has the same right to enforce these liens. By executing the assignment it is evident that it was the intention of each lien claimant to preserve and enforce his lien. The plaintiff need not have brought the suit to foreclose any but his own lien and then by pursuing the provisions of the statute would have had the right to exhibit proofs as to the others. Stats. 1861, 37, Sec. 7; Mars v. McKay, 14 Cal. 128. But by bringing suit upon all the liens (doing more than was necessary) he did not, in our judgment, lose the right to have the assigned liens enforced. Elliott v. Ivers, 6 Nev. 290.

In California it is held that the statute creates a sort of mortgage or security, which follows the original debt or obligation. Brock v. Bruce, 5 Cal. 280; Ritter v. Stevenson, 7 Cal. 389. In the case of a mortgage it is held that the debt is the principal thing, the mortgage being but an incident; that independent of the debt the mortgage has no assignable quality. Upon this theory appellants contend that if the liens were assignable they could not be transferred without an assignment of the debt which the liens secured and claim that no such assignment has been made. The assignment is endorsed on each lien as follows: “Eor and in consideration of the sum of one dollar in hand paid by Wm. Skyrme, the receipt whereof is hereby acknowledged, I do sell, assign, transfer and set over to said Wm. Skyrme the within lien and all my rights thereunder.” Without conceding the doctrine that a mechanic’s lien is to be treated in every respect like a mortgage, we consider that the language used in the assignment is broad enough to include the debt. The true principle of sound ethics is to give this language the sense in which the person making the assignment, as well as the person accepting it, intended it to have. When the assignors transferred their liens and all their rights thereunder, they meant the right to foreclose the lien and enforce the debt “in any court of competent jurisdiction.” The law provides that the mechanic, miner and material man shall have a lien for his work and labor done or materials furnished by complying with the statute. In this respect a mechanic’s lien is different from a mortgage executed by the consent of the parties, and also different from a vendor’s lien which arises from principles of equity independent of the statute. In the case of a mechanic’s lien the evidence of the debt, that is the account of the lien claimant verified by his oath, is a part of the instrument. The paper we call a lien is simply evidenceHhat the acts required by statute have been performed, and therefore that the lien created by the statute has attached. Is not the assignment of this paper, by whatever name it may be called, with all rights thereunder as much an assignment of the debt as it is of the lien ?

No particular words are necessary to constitute an assignment of a debt. If the intent of the parties to effect an assignment be clearly established, that is sufficient. If the word account had been used instead of Ken the objection of counsel would probably not have been made. To hold that these liens were not properly assigned would be to allow the merest technicality to triumph over justice. The assignment of the debt or account and the lien would undoubtedly be held good as between the parties to the assignment, and we do not think the defendants are in a position to complain because the parties did not use apt words to express their meaning. In arriving at the intention of the parties we have been governed solely by the words of the assignment and the acts of the parties at the time the transfer was made, and have disregarded the several exhibits from 40 to 46 inclusive. The plaintiff must stand or fall upon the merits of the assignments as they existed when suit was brought. The offer of these exhibits in court was an evidence of weakness on the part of plaintiff, which it was unnecessary to exhibit; and their admission in evidence was an immaterial error which in no wise affects the decree.

It is contended by appellants’ counsel that the law under which the liens were claimed having been repealed before the commencement of this'Suit-the right to enforce the liens was lost. In other words, that the liens, being nothing but a remedy created by the legislature, were liable at any time to be abolished, and hence that the liens fell with the repeal of the laws. "Without considering the question whether such liens could be destroyed by legislative action, we are clearly of the opinion that the act of March 4, 1871, was not intended by the legislature to have any such effect. The act re-enacts many of the provisions of the law of 1861 and of the several acts amendatory thereto. Its general provisions with reference to filing and enforcing the liens is substantially the «ame. The law was evidently passed for the express purpose of embracing within its provisions all laws theretofore existing upon the subject of mechanics’ liens. The act of 1871 took effect simultaneously with the repeal of all former acts and was doubtless intended to be substituted in the place of all laws existing upon the same subject prior to the time of its passage, so that instead of abrogating and annulling prior laws it had the effect to continue them in force in so far as existing rights thereunder were concerned.

Judge Hillyer, in the district court of the United States for the State of Nevada, has given to this law of 1871 the same construction. In Sabin, Assignee, v. Conner, in Bankruptcy, the learned judge says: “It is plain that the legislature never intended to destroy rights acquired under the old laws, but simply to consolidate all the laws upon the subject of mechanics’ liens and to extend it to some objects not before included. ” The same principle has been decided in Steamer Gazelle v. Wells Lake, 1 Oregon, 119; Wright v. Oakley 5 Met. 406; Steamship Co. v. Joliffe, 2 Wallace, 458. The remarks of C. J. Shaw upon the repeal of the statutes in Massachusetts are applicable to the present case. He said: “In construing the revised statutes and the connected acts of amendment and repeal, it is necessary to observe great caution to avoid giving an effect to these acts, which was never contemplated by the legislature. In terms, the whole body of the statute law was repealed; but these repeals went into operation simultaneously with the revised statutes, which were substituted for them and were intended to replace them, with such modifications as were intended to be made by that revision. There was no moment in which the repealing act stood in force without being replaced by the corresponding provisions of the revised statutes. In practical operation and effect, therefore, they are rather to be considered as a continuance and modification of old laws than as an abrogation of those old and the re-enactment of new ones. In order to construe them correctly we must take the whole of the revised statutes, together with the act of amendment and the repealing act, and consider them in reference to the known purposes which the legislature had in view in making the revision.”

The next objection of appellants is made upon the following state of facts, viz: On the 26th day of October, 1870, twenty-nine of the lien claimants (and ten of them on the 29th of October) filed a joint lien for their work and labor done and performed upon the mine owned by the Occidental M. and M. Co. Afterwards, on the twenty-sixth and thirtieth of November, 1870, the individual liens, to foreclose which this suit was brought, were filed by each of said lien claimants. Upon this state of facts appellants claim that the lien claimants could file but one valid lien and that the joint lien having been filed more than six months prior to the commencement of this action and no credit having been given, the lien was lost. The testimony shows that in many instances each claimant made a contract for himself; some commencing at one date and some at another; some working for $3 50 per day, others at $4. In some instances contracts were made with several of the claimants, but in all these cases the settlements were made separately with each contractor, and occasionally some of the contractors received more than the others. There is no provision-in our statute for filing joint liens where no community of interest exists, and we are therefore of opinion that the several lien claimants had the right to file their individual liens, treating the joint liens as if none such existed. Young v. Chambers, 15 Penn. State R. 267.

Appellants next contend that the individual liens are taken to secure distinct jobs of work and include separate periods of employment, and therefore that several of the liens are invalid because not filed within sixty days after the completion of each job or contract. A brief review of the testimony will show the character of the work. S. Schlewick, the foreman of the mine, after testifying to the amount and character of work performed by each lien claimant, says: “All the work which I have mentioned as having been done by the various parties as miners was done upon the ledge described in the complaint. * * * The contract work * * * was none of it done by the day. The only way that I get at the amount coming to the different men on contract is dividing the amount by the number of men in the contract. The winze contract I made with all the parties to the contract. I cannot distinguish between the contracts which I have mentioned, in which I bargained with all the parties to the contract, and those in which I bargained with only a portion for all.” C. Mayer, the bookkeeper, testified as follows: “The foreman, Simon Schlewick, furnished me the amount of contract, how much per foot, the number of feet finished, and I worked it out and divided it amongst the men in the contract, whose names he gave me. I was informed by Simon Schlewick that these amounts were due for work done on the Occidental mine.” On cross-examination by defendants this witness- said: “I don’t know whether the $187 50 due Ed. Bowden was due on one or more contracts. * * * I cannot say from the books or otherwise that the amount due Bowden was for one or two jobs. The books do not show, neither do I know, when the work was finished on any of the contracts I.have mentioned.” On redirect examination by plaintiff this witness said: “Each man’s account for day labor and contract was kept in one account, but the entries in the journal show what was for day’s labor and what was for contract work.”

The details of the testimony show that a half dozen contracts-were taken by a dozen or more of the lien claimants, some taking two or more contracts, others but one. These contracts were completed, respectively, May 8, June 11, July 22, August 15, and during the month of October, a.d. 1870. Two were unfinished in October, when the owner of the mine suspended and discharged all the men. The miners at work by contract, when their contracts were completed, either took a new contract or commenced work by the day in the same mine. The liens include the amount due to each claimant for his entire labor under the contracts and by the day.

The manner in which the work was conducted in the Occidental mine is quite common in'many of the mines in this State. • In the prosecution of the work it is necessary to run tunnels and cross cuts, and sink' winzes; and while as a general rule the laborers are employed by the day, it is often the case that some of them will take a contract to "do this kind of work at a stipulated price per foot, and within a few days after their contracts are completed either- go to work by the day or take other contracts in the -same mine. It would be a harsh and unreasonable rule of construction in these cases to hold that the statute required separate liens to be filed for each contract to enable the laborer to secure his wages. The injustice of such a rule would be greater to the mine owner than the laborer. It would destroy the credit, necessary at times to have in order to continue operations on the mine, or add unnecessary costs and litigation by filing and foreclosing a multiplicity of liens.

In the case at bar there was not in reality any new employment. The character of work was the same, viz.: labor and work done on the mine. _ The amount to be paid varied with the peculiar character of the work at different times. We have carefully considered all the testimony and are satisfied that there was not in the eye of the law any such stoppage or chang’e of work as created independent jobs or contracts requiring the filing of separate liens. The miners worked under the direction of the foreman of the Occidental M. and M. Co. as well under the contracts as when working by the day. We think it was proper to include the work done under the contracts with the work done by the day, and to treat the employment as one continuous transaction for the purpose of ascertaining the time within which the liens should be filed. Singerly v. Doerr, 62 Penn. State R. 12; Fitch v. Baker, 23 Conn. 567.

It is next insisted, by appellants that the lien of Wm. Tonkin does not upon its face entitle the .party claiming it to any lien. It is recited in said instrument that “ said lien is to secure the performance of a contract for the payment of seven hundred and thirty-nine dollars in U. S. gold coin, as specified by note. [A copy of which is set out in the lien.] The above note was given as a settlement according to a verbal agreement for labor done as a miner in extracting ore from and working in said Occidental mine, from the last day of February, a.d. 1869, to the fifth day of October, 1870.” While we think the better practice would be to state more clearly the character of the work, by whom and for whom done, yet, viewed in the light of the statute requirements, we do not consider that the statement is so defective as to prevent the enforcement of the lien. See Stats. 1867, 48, Sec. 1; Stats. 1861, 35 and 36, Secs. 2 and 5; Brennan v. Swasey, 16 Cal. 142; Selden v. Meeks, 17 Cal. 129.

As a further objection to this lien it is claimed: 'first, that the note was received by Tonkin in full payment of the debt; second, that if received “only as a conditional extinguishment of the debt for work, it became upon its sale and transfer to plaintiff an absolute extinguishment of the debt and luaiver of the lien.” We have carefully examined the authorities cited in support of this position. In Scott v. Ward, (4 Iowa, 112) it was held that “if the note had been negotiated or had passed from plaintiff’s control to the ownership of another the lien given by statute would be lost. Such transfer would be regarded at law as a waiver of the lien.” In the same case the court say: “It has repeatedly been decided by this court that the acceptance of a note is not a relinquishment of a mechanic’s lien.” The notes referred to had not been actually negotiated, and the opinion of the court simply decided that the court below erred in refusing to admit the lien in evidence, the indorsement of the notes being in blank and having been erased. In Morrison v. Steamboat Laura, 40 Mo. 261, the plaintiff had accepted notes and then discounted them, and afterwards took them up and brought suit to enforce the lien. The plaintiff had the notes at the trial and offered to cancel them. Walker, J., said: “According to the well settled principles of Jaw the lien was neither waived or destroyed.” The plaintiffs “had lost none of their rights and were fully entitled to their lien.” In Raymond v. Strobel, 24 Ills. 113, where it was insisted “that by taking the note of the owner of the premises the petitioner lost his lien,” the court say: “While the taking of other security, either on property or that of individuals not parties to the transaction, would have the effect to discharge the premises from the lien, yet the mere settlement and adjustment of accounts and taking the note of the owner of the premises who incurred the debt is in no sense a change of security, or security of any description. The note when taken is only evidence of the debt, and cannot be held to affect the lien.”

The note under consideration was taken by Tonkin from the owner of the mine upon which the work was done. It was taken upon a settlement and adjustment of the accounts as evidence of the amount due. Tonkin’s lien was assigned the same as the others, to enable plaintiff to bring this suit in his name. The ' note was indorsed in blank by Tonkin and delivered to the attorney who commenced this action. The note remained in the possession of said attorney until the day of trial, when it was offered and admitted in evidence to support the lien, and was filed as an exhibit in this case. Under the law, as applied to the state of facts shown by this testimony, no rights of Tonkin or plaintiff were relinquished or lost by the acceptance- or] transfer of this note.

We have examined all the objections made to each individual lien and consider them without merit. The statute in regard to mechanics’ liens was intended by the legislature as a protection to material men, contractors and laborers, and lien claimants are required substantially to comply with its provisions in order to obtain the security which it affords. As was said in Putnam v. Ross (46 Mo. 338): “The whole course of legislation on' the subject shows that it has been the intention of the legislature to avoid unfriendly strictness and mere technicality. The spirit and purpose of the law is to do substantial justice to all parties who may be affected by its provisions.”

Having this object in view we have endeavored to carry out the intention of the legislature, and to give the lien claimants the benefits they are entitled to under the law, by a fair and liberal construction of the statute.

The order appealed from and the decree of the district court are affirmed. "