Seattle Lumber Co. v. Richardson & Elmer Co.

Morris, J. This is an appeal from the judgment in an action brought by the Seattle Lumber Company against Barnes & Hester, contractors, and Dunn and wife, as owners, in which it was sought to foreclose a hen for material used in the construction of the building upon the described premises. Richardson & Elmer Company and W. P. Fuller & Company, being lien claimants for material furnished, were made defendants. The judgment denies the right of lien to the Seattle Lumber Company, from which it appeals. The other liens are established, from which the Dunns appeal. The only question involved in the appeals is whether duplicate statements of the material were delivered to the owner, as provided in Rem. & Bal. Code, § 1133, providing that every person furnishing material to be used in the construction of any' building shall, at the time such material is delivered to the contractor, deliver or mail to the owner of the property upon or about which said material is to be used, a duplicate statement of the material so furnished; and providing further that no lien shall be filed or enforced, unless duplicate statements be so furnished. The building was being erected by Barnes & Hester for Dunn as owner, in the summer of 1909. Dunn was in the north the entire summer, and had made Mr. Kelleher, of Bausman & Kelleher, Seattle, his agent for some purpose; just to what extent, we are unable to determine. It is, however, immaterial. Dunn returned to Seattle about October 1, 1909, and paid the con [673] tractors all that was due under the contract, testifying he had no knowledge of any hills for material being unpaid, and that he had received no duplicate statements of the. materials claimed to have been furnished by these three claimants. While Dunn was absent in Alaska, his wife remained in the family home, at 409, Eastlake avenue, which was the home address of Mr. Dunn', as given in the Seattle city directory, his name appearing therein as Edward it. Dunn. The Seattle Lumber Company delivered its duplicate statements on the job to Barnes & Hester, and under a finding of the court that Barnes & Hester were the agents of Dunn in ordering materials and were in sole charge of the building and the'only representative of Dunn in charge of the building, claims that the court was in error in denying its lien because of the failure to deliver duplicate statements to the owner. We do not think, in view of the court’s denial of this lien, that the finding was intended to mean anything other than the ordinary agency for the purpose of ordering material and employing labor. If the court had intended to find an agency for the purpose of receiving these duplicate statements, the lien would in all probability have been sustained instead of rejected. There is no evidence to justify giving the finding such a meaning, and we agree with the lower court that this appellant was not entitled to a foreclosure of its lien, because of its failure to deliver or mail duplicate statements to the owner. Surely a delivery to the contractor, the very man against whose shortcomings the act was to protect the ownér, would not be a delivery to the owner, unless the evidence clearly established an agency for such purpose. Bichardson & Elmer Company commenced furnishing material on July 30. On August 18, it mailed to E. It. Dunn, in care of Bausman & Kelleher, Alaska Building, Seattle, duplicate bills for material furnished July 30, and August 2, 3, 5, 7, 9, 11, and 12. This address was used on informa [674] tion obtained from Barnes & Hester. This lien was sustained by the court, but we cannot accept this part of the decree, as it does violence to the express language of the act, and the construction placed thereon by the various decisions of this court. The act says these duplicate statements must be furnished “at the time.” Such language we have held too plain for construction, and the time of the delivery of the material and that of the delivery of the duplicate statement must coincide, unless the delivery be- subsequent to the amendment of 1911, when it must be done .within five days. Finlay v. Tagholm, 60 Wash. 539, 111 Pac. 782; Finlay v. Tagholm, 62 Wash. 341, 113 Pac. 1083; Heim v. Elliott, ante p. 361, 119 Pac. 826; Hewitt Lea Lumber Co. v. Sandell, ante p. 515, 119 Pac. 848. This appellant contends that, inasmuch as Dunn .was absent from the city during all the time it was delivering material, it was prevented from complying with the provisions of the statute in delivering its duplicate statements at the time of the delivery of the material, and it should be excusbd' for such nonperformance. This contention cannot be upheld in the face of-the record that Dunn’s home all this time was at 409 Eastlake avenue, and that his address was so given in the city directory. The statute, in providing for a delivery of the duplicate statements by mail, covers this point and makes it imperative that the duplicate statements shall be delivered in person or sent through the mails; in which latter case mailing the statements to the last-known place of residence, as given in the city directory or ascertained from other reliable sources, would be a compliance with the law. This appellant made no attempt to ascertain Dunn’s address, except from the contractors whose interest it was to mislead in case they contemplated nonpayment of these bills. The Texas cases upon which reliance is had in support of this contention are based upon a statute requiring personal service, no provision being made for service by mail as in our statute; and hence are not in point. Manifestly, if the [675] owner could not be found, no personal service could be had. The right of lien in this case was therefore lost, because of a failure to mail these statements within the time fixed by the statute. The other respondent, W. P. Fuller & Company, mailed its duplicate statements to E. R. Dunn, addressed to him at Eighth and Howell streets, Seattle. This was the location of the building that was being constructed, and this address was given this respondent by Barnes, one of the contractors. It was not the address of E. R. Dunn, and never had been, and an examination of the locality would have convinced any one of that fact, as the only buildings within this address were the building under construction and a laundry upon one of the other corners. This lien was therefore also lost, because of a noncompliance with the law. It is evident that these three materialmen permitted themselves to be misled by the contractors in suggesting these different methods, in which to deliver the duplicate statements, and that the usual methods employed in ascertaining the correct mailing address of a resident in a large city would have enabled each of these materialmen to fully comply with the requirement of this law, and preserved their liens. It was suggested on the argument that there was no indication that E. R. Dunn and Edward R. Dunn of 409 Eastlake avenue were one and the same person. Any inquiry at that address would doubtless have ascertained they were. This record presents no excuse for the failure of these materialmen to ascertain the correct address of E. R. Dunn, and mail the duplicate statements to him. The fact that the contractors did not know, or, if they did know, chose to mislead, is no justification. For these reasons the judgment is sustained in its denial of the right of lien to the Seattle Lumber Company, and reversed in so far as it establishes the liens of Richardson & Elmer Company and W. P. Fuller & Company. Cause remanded for further proceedings in accordance herewith. Dunbae, C. J., Mount, and Ellis, JJ., concur.