Lucas v. Hustace

OPINION OP THE COURT BY PERRY, J. This is an action of assumpsit and for enforcement of a lien in favor of the plaintiffs as mechanics and materialmen, the [120] defendant Mellie E. Hustace being tbe owner of tbe building and tbe defendant Davis being tbe contractor wbo erected it. Tbe circuit court without a jury rendered judgment for the plaintiffs for tbe full amount claimed and for foreclosure of tbe lien. Tbe only question presented under tbe bill of exceptions is whether tbe notice of lien was filed within tbe time allowed by law, tbe provision of tbe statute being in this respect that “the lien shall continue for forty-five days, and no longer, after tbe completion of tbe construction * * * of tbe building * * * against which it shall have been filed, unless tbe same shall have been satisfied, or proceedings commenced to collect tbe amount due thereon by enforcing tbe same.” R. L., Sec. 2174, as amended by Act 97 of tbe Laws of 1909. Tbe lien was filed and served on June 2, 1911. Concerning tbe date of tbe completion of tbe building tbe trial court made tbe following finding of facts: “Tbe bouse was substantially completed some time between March 15 and March 20, 1911, at which time tbe contractor removed bis men, tools and equipment from tbe building and offered to band the same over to tbe owner. In certain minor details, however, tbe owner considered that tbe contract bad not been completed and refused to accept tbe building until, such minor matters were completed according to her understanding of tbe contract. After a considerable wordy dispute between tbe contractor and tbe owner tbe former agreed to make certain of tbe necessary alterations and for such purpose employed tbe plaintiffs herein to perform certain labor. This labor was performed during tbe week ending April 19, 1911, and amounted to $31.20.” We understand this finding to be that the building was completed between March 15 and March 20 except in respect to tbe “minor matters” referred to. Tbe evidence amply supports tbe finding. Tbe “minor matters”, as shown by tbe undisputed evidence, included the easing of certain doors and tbe furnishing and placing of certain shelving in tbe kitchen [121] and in the pantry. It further appeared from undisputed evidence that on or about March 20 the owner furnished and occupied the building and that on that date the contractor claimed that the contract had been fully performed by him and removed his men and implements from the premises. The lien claimed was for the sum of $412.76, including charges for labor and material furnished prior to March 20, 1911, as well as the $31.20 above mentioned. The owner’s contention is that the time for the filing of the lien commenced to run on March 20, the date of the “substantial completion” of the building. The rule invoked does not apply in the ease at bar. In most if not all of the cases cited in support of the contention the facts and the statutory provisions differed from those in this case. In some there was a statutory provision that “occupation or use of the building -x- » -x- ky -x- * * shall be deemed conclusive evidence of completion.” See, for example, McLaughlin v. Perkins, 102 Cal. 502. In others the provision was, “cessation from labor for thirty days upon any unfinished contract * * * ghapi pe deemed to be equivalent to a completion thereof for all the purposes of this chapter.” Johnson v. La Grave, 102 Cal. 324. In Chicago Lumber Co. v. Merrimac River Savings Bank, 52 Kan. 410, the statute declared that abandonment of the work should, for the purposes of protecting the rights of materialmen, be deemed to be the completion of the building. Under the statute in another case “any trivial imperfection * * * the construction of any building” was not-to be “deemed such a lack of completion as to prevent the filing of any lien.” Lumber Co. v. Williams, 31 Pac. (Cal.) 1128. It is obvious that the reasoning in cases in any of these classes is inapplicable in the present case in the absence of similar statutory provisions. When a building is completed within the meaning of the statute is a question to be determined in view of the circum [122] stances of each case. Perhaps it is to he deemed complete upon its acceptance by the owner as complete even though not all of the specifications have been complied with or upon abandonment by the contractor when the building is substantially but not entirely completed and the owner takes no steps to complete it. However that may be, when, as in the-case at bar, the statute simply declares that the lien shall continue for a stated time and no longer “after the completion of the construction of the building” and the owner" refuses to- accept the building as first tendered by the contractor on the ground that it has not been completed according to the specifications and thereafter, the owner still insisting that it is required by the specifications, the contractor performs the additional labor or furnishes the material for the purpose of complying with his duty under the specifications to complete the building as thereby agreed to be erected, all of the material and labor is furnished as part of one and the same continuing contract, the building is not completed until the final additions are made and the statutory period for the filing of liens does not commence to' run until then even though the additions and alterations are of comparatively slight value. “When work demanded by the terms of the original contract has been omitted, the final completion of the structure dates from the time such omissions are supplied by the builder at the request of the owner, although in the meantime the latter may have taken possession of the property * -x- *. rule seeming to be that while there is anything to do which it is the duty of the builder to perform, under the terms of the contract, the Work upon which he is engaged is not completed until this obligation is accomplished. ! * * * When the work has been apparently completed, but not accepted, the restoration by the builder of a part to which objection has been made is considered as a substitution under the terms of the original agreement, and not a repair, and therefore the statute begins to run only from the final completion of the [123] imperfectly formed obligation.” Avery v. Butler, 47. Pac. (Ore.) 706, 708. To tbe same effect are Stidger v. McPhee, 62 Pac. (Colo.) 332 and National Stockyards v. O’Reilley, 85 Ill, 546, 554. In the case at bar doors properly bung and fitted and tbe shelving in tbe pantry and tbe kitchen were essential parts of the building under tbe terms of tbe contract. It is clear from tbe undisputed evidence that at no time prior to April 19, the day upon which tbe alterations and additions were completed, was there an acceptance of tbe building by the owner even though tbe latter occupied the building in the latter part of March or early in April. Tbe language of our statute is plain and unambiguous. Tbe completion of tbe building marks tbe commencement of tbe period of limitations and in this case that event did not take place until April 19. Tbe notice of lien was therefore filed within the prescribed period. W. B. Lymer (Thompson, Wilder, Watson & Lymer on tbe brief) for plaintiffs. J. Á. Magoon and N. 17. Akili for defendant Mellie E. Hustace. The exceptions are overruled.