Vaughn Materials Co. v. Meadowvale Homes

438 P.2d 822, 84 Nev. 227, 1968 Nev. LEXIS 340

• Court: Nevada Supreme Court
• Decided: March 26, 1968
• Docket: No. 5403
• Status: Published

Opinions

OPINION

By the Court,

Thompson, C. J.:

Vaughn Materials brought suit against Meadowvale Homes to foreclose a mechanic’s lien. Vaughn lost because its claim of lien was not timely filed. We are asked to reverse that determination. For reasons hereafter stated the appeal must fail. We shall relate only those facts relevant to the issue of timeliness.

From October 21, 1964, to November 19, 1964, Vaughn furnished building materials worth $8,000 to American Homes Distributing Co. for use in the construction of homes in the Meadowvale subdivision, Sparks, Nevada. For approximately two months following the last delivery to American Homes on November 19, Vaughn continued to furnish materials to the Meadowvale subdivision job on the order of Meadowvale Homes, and was paid by Meadowvale Homes for these subsequent deliveries. Meadowvale Homes was the beneficial owner of the subdivision.

On February 23, 1965, Vaughn filed a claim of lien in the sum of $8,000 for the building materials sold by it to American Homes and used in the Meadowvale subdivision project. The claim of lien was not filed within the statutory 90-day limitation period [NRS 108.060]¹ after the last delivery of materials to American Homes. Notwithstanding this fact, the lienor suggests that foreclosure is not barred. It argues that a common law agency existed between American Homes (contractor) and Meadowvale Homes (owner) by reason of NRS 108.020(3), and that the 90-day lien period, therefore, did not commence to run until the last delivery of materials to Meadowvale Homes. Subordinately, it contends that, in any event, the time for filing a claim of lien for materials supplied to a contractor is extended when the materialman later delivers materials directly to the landowner. Neither contention is sound.

1. NRS 108.020(3) provides: “Every contractor, subcontractor * * * having charge * * * of the construction * * * of any building or other improvement * * * shall be held to be the agent of the owner, for the purposes of NRS 108.010 to 108.220, inclusive.” The statutory agency thus created is for the purpose of securing liens and not personal liabilities [Milner v. Shuey, 57 Nev. 174, 180, 69 P.2d 771 (1937)] and, therefore, is quite unlike a common law agency which charges the principal with personal liability for authorized acts of his agent. The obvious purpose of the statutory agency is to subject the owner’s property to lien for improvements ordered by one in charge, if that lien is perfected within the time and manner specified by law. Here, the lienor did not timely file its claim of lien.

2. Case law from other jurisdictions declares that the time for filing a claim of lien for materials supplied to a contractor is not extended when the supplier later contracts with and defivers material directly to the landowner. The following cases are illustrative: Frank J. Trunk & Son, Inc. v. DeHaan, 391 P.2d 353 (Mont. 1964); Anderson v. Taylor, 347 P.2d 536 (Wash. 1959); Edward Edinger Co. v. Hildreth Memorial United Evangelical Church, 201 N.W. 569 (Iowa 1925).² In each of the cited cases, as in the case at hand, the materials were furnished under distinct transactions and under separate contracts, the first with the contractor and the second with the owner. Accordingly, the lien for each was deemed to be separate, and was required to be separately enforced. The separate contracts or transactions may not be tacked together so as to enlarge the time within which to file a lien for the materials supplied under the original contract. We approve that view.

Since the transactions in this case were between different parties, the rationale of Peccole v. Luce & Goodfellow, 66 Nev. 360, 212 P.2d 718 (1949); Ferro v. Bargo Min. Co., 37 Nev. 139, 140 P. 527 (1914); Gaston v. Avansino, 39 Nev. 128, 154 P. 85 (1915); and Capron v. Strout, 11 Nev. 304 (1876), upon which the lienor relies, is inapposite.

Affirmed.

Collins, Zenoff, and Mowbray, JL, concur.

1 NRS 108.060 in relevant part reads: “Every person claiming the ’benefit of NRS 108.010 to 108.220, inclusive, shall, not earlier than 10 days after the completion of his contract, or the delivery of material by him, or the performance of his labor, as the case may be, and in each case not later than 30 days after the completion of the contract and the recording of the completion notice by the owner as provided in NRS 108.090, and in all other cases 90 days after the completion of the contract, or the delivery of material, or the performance of his labor, as the case may be, record with the county recorder of the county where the property or some part thereof is situated a claim

Note: So far as we know, a completion notice was not recorded in this case. See NRS 108.090.

2 The cases are collected at 78 A.L.R.2d 1165.