Cook v. Gallatin Railroad

ME. JUSTICE MILBUEN delivered the opinion of the court. This is a suit fop the foreclosure of a lien upon the property of the defendant railroad company, with intervention by the interveners named in the title of the cause. It has been very difficult to get a correct idea of the pleadings and of the theory upon which the case was tried, as the plead — 348 — ings were not as skillfully drawn as they might have been, and because the brief of the appellants fails to comply with the rules of the court in some particulars, thus requiring us to rely upon our own research in some parts, and causing us h> fail to discover appellants’ meaning in other places, and, further, because the argument is involved, going from one point to another without any attempt to take up and discuss the points in the order in which they are indicated in the assignment of alleged errors. Plaintiffs filed in the office of the county clerk a notice of lien, and brought an action to foreclose the lien, declaring upon a contract in writing, in which, among other things, it was stipulated that the parties thereto should settle upon the final esti1 mate of the superintendent of construction of the defendant railroad company. Plaintiffs averred that they had complied with the terms of the contract, and that under its terms they were entitled to a balance of $13,252.82, with attorney’s fees and costs. After a jury was sworn, plaintiffs, with leave, amended their complaint by adding a paragraph declaring the reasonable worth of all of the labor done to be the sum of $30,-022.82. There does not seem to have been any objection to this amendment, which was made after the second amended'answer, upon which defendants relied on the trial, had been filed. The defendants asked leave to interpose a demurrer to the complaint as amended, but the record fails to disclose that they stated upon what grounds they wished to demur, or that they offered any demurrer in writing to the court. IJpon the trial the plaintiffs, for the purpose of showing that the vrork had been completed, introduced in evidence the “final estimate” of one Wiswell, who was the superintendent of construction of the defendant company. Examination of the complaint, the answer, and of this estimate, which appears in full in the record, makes it certain that the plaintiffs claimed and introduced proof to show that they had excavated and removed cubic yards of solid rock and loose rock largely in excess of the number of cubic yards stated in the Wiswell estimate, and that the defendant company denied on the trial that the number of cubic yards of solid rock and — 349 — loose rock removed by plaintiffs was as great as claimed by plaintiffs or stated in tbe said estimate, and introduced proof to' support tbeir contention. Tbe interveners, having filed two notices of lien, asked that as to one cause of action they be allowed a lien, with provision for a deficiency judgment against plaintiffs ; and, as to tbe second cause of action, without any reference to any claim against plaintiffs, they asked for a lien on tbe property oí tbe defendants. The notice of lien first mentioned in tbe bill of intervention, referring to plaintiffs, declared tbe name of tbe owner of tbe property upon which they sought a lien to be tbe Yellowstone Park Railway. In tbe other notice set out in connection with tbeir second cause of action, without any reference therein to plaintiffs, interveners describe tbe owner to be tbe Yellowstone Park Railroad Company. .Defendants demurred to tbe complaint in intervention, and to each cause of action therein set forth; one ground being that it did not, as a whole, or as to either cause of action, state facts sufficient to constitute a cause of action. This demurrer was overruled. Tbe plaintiffs admitted all that interveners claimed, except as to the amount alleged to be due, and as to this they admitted all except a small sum. Tbe court brought in a jury to- advise it. Tbe jury found for plaintiffs, assessing tbe damages at $14,017.37. Tbe court found and entered its decree in favor of plaintiffs and interveners adjudging liens upon all the property of tbe defendants as prayed, and directing that tbe property be sold to satisfy tbe liens. Tbe defendants appeal from tbe decree, and from an order overruling a motion for a new trial. Twenty-eight assignments of error are in tbe brief, one of them not being numbered. 1. Defendants declare that tbe court erred in refusing to allow them to interpose a demurrer to thé plaintiffs’ complaint as amended, and in compelling defendants to answer immediately tbe same. While this appears to be two points in one, tbe only point apparently argued and relied upon is that tbe court erred in refusing to allow a demurrer to be interposed to the — 350 — complaint as amended; it having been amended after the jury were sworn by adding a paragraph to the effect that the work and the labor done were reasonably worth the sum of $30,-022.82. The record does not show that the demurrants stated any ground to the court why the answer as amended was de-murrable. If a demurrer in writing was offered, it has not been pointed out in the record. The complaint seems to state a cause of action, and we cannot hold that the court erred as assigned. It. does not appear that the defendants asked leave to amend their answer, or suggested that they wished to do so. 2. The 2d, 3d, 4th, and 5th assignments of alleged error refer to the court’s action in permitting the introduction of testimony showing or tending to show that the “final estimate” made by the superintendent of construction, Wiswell, was inaccurate as to the classifications of the rock and earth removed. The fifth assignment we do not notice, except so far as it may be covered by the remarks made in this paragraph, for the reason that it does not make any reference to any page of the record, and contains several assignments merged in one. We do not find that the court erred in permitting the appellants to introduce evidence to show the quantities of rock, loose rock, earth, etc., which were actually removed under the contract, and that the statement of Wiswell was not true. The case was tried hy each party on the assumption that the statement of Wiswell was not correct, and that it had not been considered by either party as the basis of settlement. The plaintiffs said it showed too little work done under some classifications, and the defendants declared that it showed too much done under the same heads. It having been repudiated by each party in open court upon the record, it does not seem to us that any prejudice could result in admitting the testimony which was introduced by each side. It is true that plaintiffs declared in their complaint upon a contract in writing, under the terms of which they could not be paid until a final estimate had been made; and it is also true that the plaintiffs did not in their complaint, avoid or attack the truth of the final estimate which was made. It also appears — 351 — that the defendants denied tbat tbe plaintiffs bad complied witb the terms of the contract. But the case having been tried and submitted in the court below upon the theory that the “final estimate” was not true, appellants cannot now maintain that, under the complaint, evidence was not admissible to show that the final statement was false. Such evidence as may have been hearsay as to Wiswell having said that his final estimate was false could not be prejudicial, as defendants themselves declared that the said estimate was not true. 3. As to assignments 6, 7, 8, and 9, we need only say that they are not' stated as the rules require. We cannot separate and number assignments where they are merged, and we cannot hunt through transcripts where there are not any references to pages thereof. 4. It is assigned that the court erred in refusing “the motion of defendants to compel the plaintiffs to elect whether they would stand upon the implied contract alleged in the complaint or upon the express contract, and to dismiss the action for the foreclosure of the lien.” Referep.ee to the transcript at the page indicated shows that the defendant did not make this motion. The language of the motion as it appears in the transcript is not the language of the assignment, and does not convey the same idea. Therefore we do not find that the court erred as assigned. 5. In assignment numbered 11, appellants say that “it was error to refuse the offer of proof made as to the classification of J ames M. Robertson, and to refuse to allow the witness Boyce to identify a statement of his classification so that it could be offered in evidence.” Examination of the parts of the record referred to shows that the court made three rulings against the appellants. To which of the three the assignment refers, we do not know. The assignment does not conform to the rules, in that the same is a merger. We will say, however, that it seems to be an attempt to prove by Boyce that one Robertson made certain calculations as to the amount of work done, and dictated them to Boyce, and that appellants offered to introduce classi — 352 — fications thus made to show that their own (Wiswell’s) final statement was inaccurate. They were objected to as irrelevant, immaterial, and incompetent, and because there was not anything before the court to- show that the data given by Robertson to Boyce were correct. We think the court was right in excluding the evidence. Robertson was not a witness on this trial, and there was not any legal ireason advanced why his data should have been introduced in the way intended by the appellants. Moreover, as we have said, it was admitted by both sides that Wiswell’s statement was not correct. 6. Referring to the twelfth assignment, we find that counsel assembles three alleged errors without setting them out “separately and particularly,” as the rules require. Counsel makes a “point of law to be discussed,” to-wit, was certain evidence properly, rebuttal, or should it have been offered in chief ? This point is raised by the assignment of the three alleged errors. We cannot consider what is not properly presented, and therefore we do not find the court in error as suggested. -Besides, the order of proof is largely in the discretion of the court. Y. As to assignments numbered 13 to 22, inclusive, relating to the instructions to the jury, refused or given, we need not make any remarks, as the case was one for the final judgment of the chancellor, to whom the findings of the jury were only advisory. The statement contained in Marsh v. Morgan, IS Mont. 19, which was a suit for foreclosure of a mechanic’s lien, that the case therein considered was not an equity case, for the reason that there was not any equity issue, is opposed to the holding of this court from the time of the organization thereof up to the date of the adoption of the constitution, and there is not anything in that instrument which changes the rule. A suit to foreclose a mechanic’s lien is a proceeding in chancery to be enforced in conformity -with the established rules and principles governing proceedings in chancery. (Mochon v. Sullivan, 1 Mont. 470; Simonton v. Kelly, 1 Mont. 483;Riale v. Roush, 1 Mont 474; Curnow v. Blue Gravel Co., 68 Cal. 262; Mont. Ore Pur. Co. v. B. & M. C. C. & S. M. Co., 27 Mont. 288, 70 — 353 — Pac. 1114; Williams v. Uncompahgre Canal Co., 13 Colo. 469, 22 Pac. 806, and citations.) 8. Assignment numbered 23 need not be considered. 9. We cannot see that it was error, as alleged in assignment numbered 24, for the court to sustain the objection of the plaintiffs to the question, “What have yon to say as to whether the clearing and finishing of the contract * * * has been completed by the plaintiffs ?” If defendants wished to make a record of error, they should have told the court what they expected to prove by the witness, and offered to prove it, and take exception to. the ruling of the court upon such offer, if it were adverse. So counsel seemed to think, and they did make the offer; but, so far as we can find from the record, the court did not make any ruling upon it, and the matter seems to have been dropped without any further effort to get a ruling upon the offer. In the argument in the brief it is stated that the court excluded the testimony offered. The record does not show that the court excluded any such testimony, for it did not make any ruling upon the offer, as we have said above. We cannot say that the court erred as alleged. 10. Was it “error for the court to find for the plaintiffs,” as assigned in assignment numbered 25 ? The argument in the brief not treating of the assignments seriatim, and in many parts thereof not being clear as to what points are discussed, we have found very great difficulty in collating the several sentences and paragraphs which are intended to express the views of counsel as to this and other alleged errors. Such an assignment as the one numbered 25 does hot point out or specify any particular finding or decision of the court as erroneous: 11. We take up now assignment numbered 26. Appellants say that the court erred in overruling the demurrer of defendants to the interveners’ complaint. The complaint in intervention declares upon contracts with the Gallatin Railroad Company, and a notice of lien upon the property of the Yellowstone Park Railway Company, a corporation, and another notice of lien upon the property of the Yellowstone Park Railroad Com — 354 — pany, a corporation. The complaint in intervention also says> upon information and belief, that the Yellowstone Park Rail-read Company and the Gallatin Railroad Company are the same cl rporation, or substantially the same corporation, and that the Yellowstone Park Railway and the Gallatin Railroad Company are the same corporation, or substantially the same. Before taking up and considering the several grounds of the demurrer to this complaint in intervention, it is necessary to set .forth more particularly the allegations contained in the complaint. Interveners allege in their first cause of action that between August 25 and November 17, 1898, they performed work 'and labor for the defendant Gallatin Railroad Company (describing it), which work and labor was done at the special instance and request of the plaintiffs, Cook & Woldson. In their second cause of action they say that between September 1 and November 15, 1898, they performed certain work and furnished certain material to the defendant Gallatin Railroad Company at its special instance and request, and that the reasonable value •thereof ($490.93) has been due and owing to the interveners from the Gallatin Railroad Company since November 15, 1898. The interveners pray judgment upon their first cause of action for the sum of $5,293.47, with interest and attorney’s fees, and that they may have a deficiency judgment against the plaintiffs if the property be not sold for enough to pay the full amount of their claim (in other words, they apparently want judgment against the defendants, and a deficiency judgment against the plaintiffs) ; and upon the second cause of action they pray for judgment for $490.93, with interest and attorney’s fees, with a lien on the property described, and, in the event that the claim of plaintiffs “be established upon the property above mentioned, then in that event, that the proceeds derived from the sale of said property shall be shared equally, pro rata, according to the re pective amounts so found due plaintiffs and interveners, in case the said proceeds arising from, the sale of said property be insufficient to pay said plaintiffs and .interveners’ claims in full * * Of course, the prayer is not part of the complaint; — 355 — and it, in part, is introduced herein only for what it is worth, to aid ras in arriving at some understanding as to what the complaint in intervention means. Defendants demurred to the complaint in intervention upon the gimmd, among others, that ii did not state facts sufficient to constitute a cause of action. The demurrer attacked the first cause of action upon the ground, among others, that it did not state facts sufficient to constitute a cause of action, and the second cause of action upon the like ground, among others. We think the demurrer should have been sustained on the ground that the complaint did not state facts sufficient to constitute a cause of action; that is, that there was a want of any reason or ground for intervention in the suit. It is apparent from an examination of all the averments of the complaint in the first cause of action that the interveners never made any bargain with the Gallatin Railroad Company, although they may have done so with some other company; and it is obvious that there is not any basis for a lien in favor of the interveners against the property of the defendant company, for that it is not named in either of the alleged notices, and, further, not having any such basis, the alleged fact that they have a cause of action at law for a money judgment against the defendants, or one of them, is not of itself sufficient to warrant intervention in the suit of plaintiffs to foreclose a lien, however willing the plaintiffs may be to permit the interveners to come in. It is possible to assume from the complaint that the interveners intended to allege that they were subcontractors of the plaintiffs as to the first cause of action, but, considering the complaint with the notices of lien attached thereto, there is not a sufficient statement of a cause of action for the establishment of a lien upon any property belonging to the defendants. In Missoula Mercantile Company v. O'Donnell, 24 Mont. 65-75, 60 Pac. 594, 991, the chief justice, speaking for the court, said that it is incumbent iipon the claimant to insert the owner’s name in the notice of lien which the law requires to be filed in the office of the county clerk. (Section 2131, Code of Civil Procedure.) — 356 — Tbe abstract made by tbe county clerk (Section 2132, Code of Civil Procedure) must contain “tbe name of tbe person * *' * against whose property tbe lien is filed.” It is no hardship that tbe claimant shall be required to insert tbe name of tbe owner in tbe notice, says this court in the opinion cited above. “Tbe claimant is bound to know for whom be works, 01 for whose benefit be is bestowing bis materials. If be assumes tbe risk without inquiry sufficient to enable him to preserve bis rights, it is bis own fault. Tbe statute gives him ample time to inform himself. ' Though the statute is remedial in character, its requirements must be complied with. (Black v. Appolonio, 1 Mont. 342.)” M. M. Co. v. O’Donnell, supra. Omission of tbe name of tbe owner whose interest is to< be charged cannot be supplied by tbe complaint. (Phillips, Mech. Liens, 345.) Por tbe foregoing reasons, and under tbe authority of Missoula Mercantile Co. v. O’Donnell, supra, and tbe cases cited by tbe chief justice therein, and (as to tbe alleged second cause of action) because tbe having’ of a right of action against a defendant (in a certain cause commenced by another) for tbe recovery of money, merely, without a right of lien, is not ground or reason for intervention in a cause brought by another party against said defendant, we conclude that tbe demurrer as to each of tbe alleged causes of action should have been sustained. For tbe reasons last above stated, it was error to find for tbe interveners, as stated in assignment numbered 27. Tbe decree, for tbe reasons stated, must, and is, modified by striking out so1 much thereof as finds for, and decrees any lien in favor of, tbe interveners, and as modified is affirmed. The interveners will pay one-half of the costs of appeal. Modified and Affirmed. Mu. Justice Holloway, having been of counsel in tbe court below, takes no part in tbe decision or in this opinion.