Meyers Lumber Co. v. Tompkins

Bubee, J. This is a continuation of the controversy treated in Meyer Lumber Co. v. Trygstad, 22 N. D. 558, 134 N. W. 714, where a statement of the facts may be found. After the said decision, holding void the lien filed against both lots and buildings thereon, the [80] lumber company, on tbe 4th day of /April, 1912, filed separate liens upon each lot and building, and later brought action to enforce the lien against Tompkins, in the district court of Ward county, North Dakota. The complaint is in the ordinary form, and alleges that, at the request of the contractor, they furnished for both buildings, material of the value of $7,118.75, according to a schedule thereto attached, giving itemized statement of such material; that the contractor agreed to pay therefor, but that no part of the same had been paid except the sum of $391.40, leaving a balance due and unpaid of $6,727.35. That said materials were purchased by the said contractor and were furnished by the plaintiff to be used, and were in fact used, in and about the construction of two certain store and office buildings, one building owned by defendant Tompkins and the other by one Frank, situated upon adjoining lots. That the contracts between the owners of the buildings and the contractor were separate and distinct, and the buildings were constructed at about the same time by the said contractor, and the materials entering into the construction of said buildings were used indiscriminately in each of said buildings; and it is now and has been at all times impossible for this plaintiff to designate the particular items of said materials entering into the construction of each of the said buildings, respectively. That one third of said materials were used in and about the construction of said building owned by said defendant (Tompkins), and situated upon the aforesaid lot 15; and two thirds of said materials were used in and about the construction of said building owned by one Guy 0. Frank, situated upon lots 13 and 14, aforesaid. That pursuant to said contracts the buildings were erected upon the respective premises; that on the 16th day of March, 1908, the plaintiff served upon the said defendants and each of them, by registered mail, certain notices whereby it notified the said defendants and each of them that it had furnished the material mentioned, and that it would claim a lien upon the respective premises above described, which said notices were marked exhibits B and 0 and made a part of the complaint. That the said Tompkins is the owner of the buildings erected by him, and that on the 4th day of April, 1912, the plaintiff had filed in the offices of the clerk of the district court within and for Ward county its duly verified claim, con [81] taining a just and true account of the demand due it after allowing all credits, and a correct description of the property owned by the said defendant Tompkins to be charged with said lien; which claim was duly filed and docketed with said clerk, and is now, and ever since has been, unsatisfied of record. This was followed by a demand for judgment of foreclosure. To this a demurrer was interposed, which, after argument, was sustained by the trial court. This appeal is from the resulting judgment. The defendant and respondent in his brief states that there are four propositions raised by the demurrer and the complaint: first, that the plaintiff has by a former action elected its remedy, and is barred from maintaining this action; second, that the notice of lien is not sufficient; and, third, where building materials entering into the construction of two buildings owned by different parties are used indiscriminately in each of said buildings by a subcontractor under separate contracts with the owners, and it is impossible for the materialman to designate the particular items entering into the construction of the said buildings, and the materialman furnishes such material under a general contract with the subcontractor, no lien can be had, and an apportionment cannot be had so as to give the materialman a lien on one building for an appropriate share of the materials going into both buildings; and, fourth, where lienahle and unlienable articles are indiscriminately intermingled in lien account, and the lienable items cannot be segregated, no lien can be had. (1) We do not believe the filing of a void lien amounts to such an election of remedies as precludes the filing of a valid lien thereafter. At 15 Cyc. 262, it is said: “A person who prosecutes an action or suit based upon a remedial right which he erroneously supposes he has, and is defeated because of the error, has not made a conclusive election, and is not precluded from prosecuting an action or suit based upon an inconsistent remedial right.” Many cases are cited in support of the text, both in the original Cyc. and in the annotations. A case particularly in point is Sullivan v. Ross, 113 Mich. 311, 71 N. W. 634, 76 N. W. 309, Judge Moore giving a very lucid exposition of the equities involved. (2) Taking up the second point raised by the demurrer, we believe [84] render it harder for tbe materialman to perfect his separate liens. The distinction between the two cases is obvious. The complaint therefore stated a cause of action, and the demurrer was improperly sustained. Judgment reversed. Goss, J., disqualified