McCarthy v. Groff

Mitchell, J. As the trial judge filed no memorandum, we are not advised upon what theory of the law he ordered judgment for the plaintiffs, or upon what ground he afterwards granted defendants’ motion for a new-trial; but as the findings of fact are insufficient to support a judgment in favor of the plaintiffs, and as this court cannot supply findings not made by the trial court, it follows that the order granting a new trial must be affirmed. It is proper, however, with reference to another trial, that we should indicate our views of the law applicable to the facts as they seem to appear from the evidence. The facts, or at least as they might have been found from the evidence, were as follows: About November 1, 1887, defendant Groff, as owner, made a contract with plaintiffs by which they were to furnish the material and perform the labor in putting the plumbing and steam-piping into a dwelling house then being erected by him on his own land, and for which he was to pay them the sum of $1,280. It does not distinctly appear within what time the work was to be completed, or when it was to be paid for, but it is fairly inferable from the evidence as a whole that the work was to be seasonably prosecuted as the building was ready for it, and that it was to be paid for by Groff from time to time as the work progressed. Plaintiffs commenced work on November 7th, and prosecuted it in the ordinary manner until January, 1888, when Groff, having become somewhat straitened for money with which to erect the building, and hence unable . to make payments as the work progressed, requested plaintiffs not to hasten the work to completion, to which they assented. On February 13, 1888, during the progress of the work, Groff sold and conveyed the property to his father-in-law, the defendant Balch. This conveyance was placed on record, but the plaintiffs had no knowledge of the transfer of the property, and Groff continued in possession, “bossing the work,” precisely as before. The plaintiffs went on doing work on their contract from time to time, under Groff’s directions, until March 29, 1890, antici [329] pating that Groff, by sale of the property or otherwise, would raise money with which to pay them, so that they could go on and complete their contract. From January, 1888, when plaintiffs at Groff’s request slackened progress on the work, until about November 1, 1889, although in accordance with that request they prosecuted the work very slowly, yet, judging from the bill of particulars, they from time to time furnished material and performed work under their contract of very considerable and substantial value, amounting in all to some $400. By November 1, 1889, substantially all was done which has ever been done by plaintiffs on their contract, but the contract was not abandoned or terminated by either party. On the contrary, both parties treated it as still in force, and the plaintiffs continued, at Groff’s request and at his consent, from time to time, to do a little work, so as to keep their lien alive in case he should be unable to raise money with which to finish the building; the hope or expectation of the parties being that he would be able to raise the money, and that the plaintiffs would then complete their contract. The last work done on the job by plaintiffs was on March 29, 1890, when it was agreed by both parties that, as Groff had been unable to raise money, the contract should be considered at an end, and that plaintiffs should quit the job, as they had a right to do, because of Groff’s default. The work done by the plaintiffs from time to time between November 1, 1889, and March 29, 1890, was work which they were required to do under their contract, but the object in performing it was, as already stated, according to the understanding between them and Groff, to preserve and keep alive the lien until it was ascertained whether Groff could raise money with which to complete the building. Within 90 days from March 29, 1890, the date at which the last labor was performed, the plaintiffs filed their lien for what they had done on the contract. On these facts, if they should be so found from the evidence, we are of opinion that the last item of labor or material should be deemed as'furnished March 29, 1890, and that a lien filed within 90 days thereafter was good. Had the contract been previously abandoned and terminated, or had it been at some prior date substantially performed, and these later items of labor or material performed or fur [330] nished by plaintiffs on their own motion for the purpose merely of preserving or reviving their lien, an entirely different case would have been presented; or had there been no entire contract for the whole work, but it had been done merely on a running account as ordered from time to time, a different result might have been reached. But here was a case where there was an entire contract for the whole job, and while full performance had been by mutual consent delayed or postponed for the accommodation of Groff, yet both parties treated the contract as still in force, and expected and intended it to be fully performed as soon as Groff was in condition to perform on his part. If this action was solely between plaintiffs and Groff, it would seem to us that there could be no reasonable doubt as to the law upon the supposed facts. But we do not see that, under the circumstances, Baleh has any equities superior to those of Groff. If he had purchased after the work was substantially completed, he might have had a right to assume that if any lien existed against the property it would be filed within 90 days, and might have been in position to claim that the time for filing could not, as against him, be extended by some nominal amount of work done for the express purpose, after substantial performance. But he purchased right in the midst of the work, and left Groff in possession and in charge precisely as before the transfer. Therefore we do not see that he has any equities that put him in any better position than Groff. But for the reason first suggested the order appealed from must be affirmed. Dickinson and Collins, JJ., absent, took no part. (Opinion published 51 N. W. Rep. 218.)