Holtzman v. Bennett

Causes of action in complaint are based on quantum meruit while lien notices set out express contracts. Evidence supports neither. Testimony is of stated account. When work ceased there was undetermined amount for wages and undetermined amount for board and commissary. Balances were submitted to and approved by lien claimants. This constituted account stated. Johnson v. Gallatin Co., 98 P. 883. Variance between complaint and lien notice is fatal. Malone v. Big Flat Gravel Co., 18 P. 772. Only such proof as establishes allegations of pleadings is admissible. Wheeler v. Schad, 7 Nev. 204; Carson River Co. v. Bassett, 2 Nev. 249. Statement for mechanic's lien must be essentially true. Where lien claimed for labor and material and proof showed only labor, variance was fatal. Wagner v. Hansen, 37 P. 195. "Performing labor for carrying on mill" means actual, manual labor in mill, and does not include services of cook. McCormick v. Los Angeles, 40 Cal. 185. Ely Coal and Lumber Company claimed as materialman under Rev. Laws, 2213, and filed in accordance with Rev. Laws, 2217. Amendment was allowed under Rev. Laws, 2231 (which allows lien for performing labor), permitting claim for labor. Amendment was two years too late. Company initiated right to lien under 2213. If it desired to claim lien under 2231 it should have done so in first lien notice or in independent notice. Court erred in allowing amendment, which should be allowed only under 2217, to correct names, etc., and not to change charge from material to labor. What cannot be done directly should not be permitted indirectly. *Page 276 We refer to brief in companion case, Richmond Machinery Co. v. Bennett, 48 Nev. 286. If variances did exist, they would not substantially have affected rights of appellants. However, alleged variances did not in fact exist. Proof showed express contracts were made as alleged. Subsequent happenings which might have justified suits on account stated did not show lien claims were untrue. Claim of lien must disregard subsequent account stated since statute requires claim of lien to state time, terms, and conditions of contract. If complaint was ambiguous, defendant should have demurred. Under allegation of agreed price and failure in proof thereof, evidence is competent to show reasonable value or usual compensation, not beyond amount alleged. After complete performance of express contract, there is no reason why recovery may not be had on quantum meruit, when opposite party has not been misled. Burgess v. Helm, 24 Nev. 242, which is not so strong a case as this on express contract. Complaint may support recovery on quantum meruit or special contract, as facts disclose, particularly in absence of demurrer for uncertainty, etc. Lacy Mfg. Co. v. Los Angeles etc. Co.,106 P. 413; McClain v. Hutton, 63 P. 183; Castagnino v. Balletta, 23 P. 127, proof in which case would have justified action on account stated. There is no variance where proof shows special contract or implied contract, as case may be. Bardwell v. Anderson, 32 P. 285; Lucas v. Rea, 102 P. 822. Variance is immaterial where there is no difference between agreed price and reasonable value. Foulger v. McGrath, 95 P. 1004; Star etc. Co. v. Porter, 88 P. 497; Adams v. Burbank, 37 P. 640. Variance shall not defeat lien unless fraudulent, intentional, or misleading. Rev. Laws, 2217. This provision distinguishes counsel's California citations. Rev. Laws, 2231, provides for liens for construction, *Page 277 repairing, or carrying on of any mill, not upon them as the California statute provides. McCormick v. Los Angeles, does not, therefore, apply. Labor of cook certainly was performed for carrying on of mill. Character of work is not closely scrutinized. If it has legitimate connection with general work of plant, it is sufficient. Malone v. Big Flat G. Co., 18 P. 772, quoted with approval in Maynard v. Ivey, 21 Nev. 241. Group consists of sixteen contiguous, interdependent claims. Mill was to serve all. Court did not err in granting lien on four claims of group. Gould v. Wise, 18 Nev. 253; Salt Lake Hardware Co v. Chainman etc. Co., 137 Fed. 632. Complaint and lien were properly amended as to claim of Ely Lumber and Coal Company since, by mistake, item was charged as material instead of haulage of oil. Variance was not fraudulent, intentional, or misleading to defendant. Rev. Laws, 2217. Service for hauling oil is lienable. In Re Hope Mng. Co., 1 Sawyer, 710. OPINION This action was instituted to foreclose several mechanics' liens assigned to the plaintiff. Judgment was rendered in favor of the plaintiff as prayed in the complaint, from which, and from an order denying a motion for a new trial, an appeal has been taken. The facts will sufficiently appear from the opinion. The parties will be referred to as plaintiff and defendants as in the trial court. 1. The first error assigned is that there is a fatal variance between the forms of the contract stated in the lien statement, the allegations of the complaint, and the proof. The lien statements set forth the precise terms of the alleged contract relied upon, whereas the complaint alleges that the work performed was so performed at the special instance and request of the defendants of *Page 278 a definite value, which the defendants agreed to pay therefor. 2. There was no variance justifying the contention urged. Lien statutes are liberally construed in this jurisdiction with a view of effectuating their object and purpose. Ferro v. Bargo M. Co., 37 Nev. 139, 140 P. 528, and it is a well-recognized rule that, when the lien statement sets forth an express contract, and an implied contract is pleaded and proven, or vice versa, there is no such variance as will preclude recovery under the lien statement. Foulger v. McGrath, 34 Utah, 86, 95 P. 1004; Lucas v. Rea, 10 Cal.App. 641, 102 P. 822; Horton v. Emerson, 30 N.D. 258,152 N.W. 529; Wright v. Lake, 48 Wn. 469, 93 P. 1072. See section 2217, Revised Laws. 3. It is next assigned as error that "the court erred in finding that the labor of the various claimants was performed at a reasonable value." In support of this assignment it is said in the brief of appellant: "The liens all allege employment at a fixed rate of day pay, and the evidence of the witness Fuller also bears that out. The findings are certainly contrary to the evidence, for outside of the complaint, there is nothing in the record to indicate that defendants agreed to pay for said services whatever they were reasonably worth." If we correctly interpret the brief of appellant, it simply contends that evidence of a contract value of services rendered will not support a judgment on a quantum meruit. Such is not the law of this state. Burgess v. Helm, 24 Nev. 242, 51 P. 1025. 4. Error is assigned to the ruling of the trial court relative to plaintiff's Exhibit 2. In reference to this assignment we may say that three companion cases are before the court on appeal growing out of the alleged indebtedness incurred by the defendants. The records in these three cases inclosed in one package, and a lot of exhibits contained in another package, were received by the clerk at the same time. These exhibits do not indicate in what case they were received in evidence, *Page 279 and it is impossible for this court to determine. We find one document marked in one place, Plaintiff's Exhibit 2, and in another place, Plaintiff's Exhibit Q. The exhibit does not show on its face what it is for, or in what case it was used as an exhibit. It is not incumbent upon this court to draw upon its imagination, but it is incumbent upon attorneys bringing cases here to see to it that the record is in proper shape and intelligible. So far as we are able to say, there is no merit in the assigned error. 5. It is also contended that the trial court erred in refusing to strike from the evidence the lien claim of the Ely Lumber and Coal Company upon the ground that the proof shows that the last item of the claim was not for goods, wares, and merchandise sold and delivered, as stated in the lien statement, but was for services rendered in hauling oil. Section 2217, Revised Laws, as amended (Stats. 1917, p. 44, sec. 1), provides: "Upon the trial of any action or suit to foreclose such lien no variance between the lien and the proof shall defeat the lien or be deemed material unless the same shall result from fraud or be made intentionally, or shall have misled the adverse party to his prejudice, but in all cases of immaterial variance the claim of lien may be amended * * * to conform to the proof." The evidence shows that the original lien statement was introduced in evidence without objection. When it appeared from the evidence that there was a variance between the statement and the proof, the plaintiff sought and was permitted to amend the statement to conform to the proof. The only question is: Did the court abuse its discretion in the matter? If the services for which this item is sought to be made chargeable is one for which a lien might have been stated in the first instance, no error was committed. By section 2231, Rev. Laws, it is provided that all persons performing labor for the carrying on of any mill shall have a lien. Since oil is necessary in the operation of a mill, we think the item is one for which a lien may be asserted. In Re Hope Mine Co., 1 Sawy. 710, Fed. Cas. No. 6681. *Page 280 6. It is also contended that the court erred in sustaining a lien upon too much land for use in connection with the mill. Counsel says the "testimony shows that only between 50 and 150 feet around the mill was required for its operation." The only testimony on this point is that given by the defendant McCulloch, who testified as follows: "Q. Do you know the amount of ground necessary for the operation of such a mill as is on this ground, as is supposed to be? A. The dimensions of the mill covering all the machinery that is used is probably 60 by 205 feet. "Q. How much additional ground would be necessary for the operation of that mill in your judgment? A. The mill would operate inside the building. "Q. Yes, but the surrounding ground? A. Oh, it is hard telling. I can't tell. "Q. Would you say 50 to 100 feet all around the building? Would that be sufficient for the operation of the mill? A. If the mill ran for ten years, no. "Q. Well, we are talking about now? A. It wouldn't require any amount of ground around it to run it the way it is running now. "Q. Well, suppose it was operating now. How much would it require? Would it require as much as fifty feet around? A. Yes, I believe 50 feet around would be sufficient." The amount of ground shown to be necessary for the operation of the mill by the above testimony was estimated upon a basis of present needs. It made no allowance whatever for the future operation of the mill. Such is not a fair basis upon which the court could make an order for future operations. As was pointed out by Judge Hawley in Salt Lake Hardware Co. v. Chainman etc. (C.C.), 137 F. 632, there must be ground for dumps, tailings, supplies, and for the convenient use and operation of the property. See, also, Gould v. Wise, 18 Nev. 253,3 P. 30; Western Well Works, Inc. v. California Farms Co. et al.,60 Cal.App. 749, 214 P. 491. We perceive no prejudicial error in the matter complained of. 7. Error is assigned to the ruling of the court in *Page 281 rendering judgment upon a claim for services performed as a cook. In support of this assignment our attention is directed to the case of McCormick v. Los Angeles Water Co., 40 Cal. 185, wherein it was held that there could be no lien for services rendered as a cook. It is contended, however, that the statute under which the lien is asserted in this case is different from the one therein construed. In this case it is sought to enforce the lien pursuant to section 2231, Rev. Laws, above alluded to. The case of Malone v. Big Flat G. Co., 76 Cal. 578, 18 P. 772, which is a case wherein it was held that a blacksmith was entitled to a lien for work done in sharpening picks, drills, etc., used in the mine, is cited in support of the contention. That decision was based upon a statutory provision to the effect that such tools should be deemed affixed to the mine. In view of this law, the work was done upon the mine itself. It is clear that this case is not in point. A lien cannot be asserted, except where authorized by statute. The cook did no work in connection with the operation of the mine, and can assert no lien. Clark et al. v. Beyrle et al., 160 Cal. 306, 116 P. 739. 8. It is also contended that the court erred in denying the motion to consolidate the actions to foreclose mechanics' liens against the defendants. We think this contention is well founded. As pointed out in the opinion on rehearing in Daly v. Lahontan Mines Co., 39 Nev. 14, 151 P. 514, 158 P. 285, suits to foreclose mechanics' liens against a defendant should be consolidated. It is ordered that this case be remanded to the trial court, with directions that it modify its judgment in accordance with the views herein expressed, and that it further proceed in the premises in accordance with law and rules of practice in such cases made and provided, and, as so modified, it is ordered that the judgment be affirmed. ON PETITION FOR REHEARING December 13, 1924.