Williams v. Judd-Wells Co.

Gbang-eb, C. J. 1 2 [380] I. Appellant’s particular complaint is that the “statement and lien seek to charge the eleven other buildings, and the lots on which they are situated, with a lien for the material furnished on each one, and to charge each one with a lien for all the material furnished for the remainder.” By the contract under which the lien is claimed, plaintiff was to do work on forty houses in the city at a certain price per yard of plastering and a certain price per thousand for brick in the wall. The contract included the twelve houses in question. The houses were on lots some of which are contiguous and others not. All the work and materials were paid for, except such as were furnished for the houses in question, for which there is in reality a balance due as claimed. We think the fact that the lien as filed is general as to the twelve houses and eleven lots on which they are situated does not render the lien void, as claimed by appellant, and the conclusion has support in Lumber Co. v. Newton, 72 Iowa, 90, 33, N. W. Rep. 377. In that case, two buildings were erected on different lots, and the material was furnished under [381] a single contract, and so furnished that the items for the different buildings could not be designated, and the lien filed was general, as in this case. It is there said that the law “does not prohibit the establishment of liens upon two buildings. The fact that part was for one building and part for another is a question which is not material to the person seeking to enforce the lien.” In Lewis v. Saylors, 73 Iowa, 504, 35 N. W. Rep. 601, the Bowman Lumber case is referred to, and it is said that “it is not meant by that holding that the plaintiff would be entitled to a lien upon one building for material which it was shown went to another. All that was meant is that, if the question is of any materiality to the defendant, the burden will be upon him to show how the material was expended.” To us, the rulings in those cases seem very conclusive of this case. If such a lien is good as to two houses, why not as to twelve? The principle seems precisely the same. The only distinguishing fact that we discover is one that might change the burden of proof to show how the material was used o.r the labor expended. In those cases, the material was purchased and used by the defendant, and the burden is there placed on him to- show where it was used. In this case, the plaintiff placed the material and labor, and, if we follow the rule suggested in the Lewis case, and place the burden on the plaintiff, because of his having knowledge of the fact, we only state a rule that has been complied with, for the plaintiff assumed that burden, and made a full showing of the amount for each house, and the decree is based thereon. The case of Roose v. Billingsly & Nanson Commission Company, 74 Iowa, 51, 36 N. W. Rep. 885, is disposed of alone on a failure to sufficiently describe the property on which the lien was sought, or a failure of proofs. The conclusiveness of our own decisions renders it unnecessary to review the authorities of other states. [382] 4 II. There is a claim that “the liens can not now be separated.” The argument is based on holdings in other states, not applicable, under the holdings cited, to the law of this state. We notice Chapin v. Persse & Brooks Paper Works, 30 Conn. 461. The case holds, under the law of that state, that a joint lien can not be claimed upon separate houses. We do not hold to that rule, and we see no reason why, if the justice or equities of the case will be aided by it, separate liens may not be established under a general claim. Such a rule avoids multiplying suits, or may do so; and it is difficult to imagine a prejudicial consequence to result from such a course of procedure. 5 III. It is said that the lien is bad because the title to the property was not all in the same owner.* The issues, as made by the petition and answer, present no such a question. The ease seems to have been submitted on a demurrer to the petition and answer subject thereto by consent, and later in the abstract it is said: “The demurrer was submitted to the court with the evidence of the case.” Such a procedure is not that contemplated by the statute. Without. saying whether or not such a submission should be entertained, it is sufficient to say that no question is before us as to the demurrer, for no ruling was made on the demurrer below, nor was any exception taken or preserved, which is essential for a review of a law question. Hanna v. Hawes, 45 Iowa, 437. The same considerations are conclusive of a complaint that the contract was not made with the owners of the property. It was made with the owners of a part of it. The judgment is AEFIEMED.