Finlayson v. Biebighauser

Dickinson, J. These appellants claim and seek to enforce mechanics’ liens upon certain real estate of the respondent Johnson on account of building materials sold by them to one Dahlquist, who had contracted with Johnson for the erection of a building for the latter. These claims were disallowed in the district court for the reason that the state'ments of the lien claims filed by the appellants were deemed insufficient under the statute. The statute (Laws 1889, ch. 200, § 8) provides that the statement shall set forth “* * * (5) the name of the owner or reputed owner, at the time of making said statement,' * * * according to the best information then had.” The lien statement of the appellant Biebigbauser failed to set forth the ownership of the property at the time of the making of the same, but it alleged the ownership of Johnson at the time of the making of the contract between the appellant and the principal contractor, Dahlquist, and at the time of the furnishing of the material to the latter. We are of the opinion that the statute discloses an intention on the part of the legislature that the provision above recited, respecting the statement of the name of the owner, should not be deemed imperative to be enforced according to its strict letter. The language of the requirement does not seem to make it absolutely essential that the ownership be correctly or positively stated. The name of the owner or reputed owner, according to the best information of the claimant, is all that is called for. And in section 9 of the same law it is declared that “the validity of the lien shall not be affected * * * by any inaccuracy in the statement of the name of the owner or reputed owner of such property.” It being thus apparent that the legislature intended that an erroneous statement of the name of the owner should not necessarily invalidate the lien, we cannot entertain the view that the closely associated and less important provision as to the time to which the statement is to refer was intended to imperatively require the allegation of ownership to relate strictly and inflexibly to the time of the making of the statement. It is not probable that it was intended that an erroneous statement of the name of the owner should not invalidate, but that a correct statement of the ownership at the definite and important time of the making of the contract and the furnishing [207] •of the material for which the property is chargeable should be insufficient, and that a failure to make the allegation as of the time of the making of the statement should be fatal to the lien claim. Taking together both of the above-recited provisions, we think that the .former (subdivision 5) should be construed as directory rather than imperative, and that exact compliance with its letter was not necessary. In Hurlbert v. New Ulm Basket Works, 47 Minn. 81, (49 N. W. Rep. 521,) the effect given to this section was in harmony with the -decision now made. An allegation by the lien claimant that he was informed that a person named was the owner (as in fact he was) was held sufficient, although there was no averment that this was according to the “best information” of the declarant. In the case before us the purpose of the law, the giving of notice, must be deemed to have been accomplished. The property was accurately described, and the name of the person owning it at the important stage of the proceedings, when the contract was made and the materials furnished, for which the premises became chargeable, as well as that of the principal contractor, and the proper relation of those persons, were set forth. There could have been no prejudice from the failure to comply strictly with that part of the statute here in question, and which is deemed to have been directory rather than peremptory. The case of the appellants Finlayson and others is deemed not to be essentially different from that of Biebighauser, although the statement is somewhat more meagerly expressed. In effect, and as serving the purpose of a notice, it is substantially the same as the other. The conclusion is that the judgment appealed from should be modified so as to allow and enforce liens upon the property in favor of the appellants for the amounts found due to them, respectively, and the cause will be remanded to the district court, where this conclusion will be carried into effect. (Opinion published 53 N. W. Rep. 362.)