Henning v. McAdam

BROWN, C. J. Action to foreclose a mechanic’s lien in which plaintiff and other lien claimant parties had judgment, and defendants John Y. McAdam and Marion H. McAdam, husband and wife, appealed from an order denying a new trial. The facts are in dispute in one important respect only. It appears that of date July 11, 1921, defendant John V. McAdam, the fee owner of the premises in question, entered into an executory contract to sell and convey the same to one Robinson, upon the terms and conditions of future performance specified in the contract, which was in writing. Robinson, a contractor and builder, previously had in mind the purchase of the premises and upon acquiring the same making certain improvements and alterations in the building situated thereon. And upon the execution of the contract, possession being then surrendered to him, he carried out his plans, commencing [196] work tbereon about July 20, 1921, and made all tbe changes in the building previously in mind. The liens here sought to be foreclosed represent different items of labor and material used and employed in the improvements so made. The substantial question in the case is whether McAdam had notice of the improvements during the progress thereof, and failed to protect his rights by a compliance with the statute requiring, in such case, the fee owner to give notice that improvements of the character stated are not being made in his behalf or at his instance. Upon this issue the trial court found that “The defendant (McAdam) knew at the time he executed the contract that Eobinson contemplated repairing the house and so altering the same as to make a duplex out of it. This is the repair and alteration which Eobinson did make, and for which the lien claimants herein furnished labor and material as heretofore found. That defendant had knowledge that the improvements were being made as early as August 17th, 1921, and he was also notified and knew as early as the 12th of September, 1921, that the same were being made. He served no notice on the lien claimants, and posted no notice upon the premises at any time that the improvement was not made at his instance.” The statute controlling the issue in the case is G. S. 1918, § 7024. It is there provided that the fee owner of premises may guard against liability for improvements made thereon by a lessee, or ven-dee in an executory contract of sale, by posting a notice upon the premises that the improvements underway are not being made at his instance. It applies at bar. Hockey v. Joslyn, 134 Minn. 468, 158 N. W. 787; Wheaton v. Berg, 50 Minn. 525, 52 N. W. 926. And if defendant knew that the improvements were made by Eobinson the premises are chargeable with the liens, for there is no claim that the necessary notice was posted or otherwise given. Stravs v. Steckbauer, 136 Minn. 69, 161 N. W. 259. So the controlling question on the appeal is whether the findings of the trial court are within the evidence. We answer it in the affirmative. During the entire period of this transaction defendant was a resident of the state of New York, and was not personally present in [197] this state. He was represented in the sale of the property to Robinson by an agent, E. L. Me Adam, his brother, a resident of the city of St. Paul wherein the property is located. The agent was informed of the plans of Robinson in respect to the improvement of the property should he make the purchase, and he in turn advised defendant thereof by a letter transmitting the executory contract of sale for signature and acknowledgment. The contract properly executed was returned to the agent for delivery, and it was subsequently delivered to Robinson. In its original printed form the contract contained a clause prohibiting the vendee from making improvements on the premises which might expose the property to mechanics’ liens. The clause was stricken out by a line of red ink drawn through the same before it was signed or executed by the parties. Robinson was given possession of the premises early in July and the improvements in question were commenced about the twentieth of that month. The letter of the agent advising defendant that the improvements were in contemplation by Robinson was as follows: “He (Robinson) expects to move in right away and do what repairing he considers necessary, then in the winter when his business of general contracting eases up he intends to make quite extensive changes and turn the house into a duplex.” The agent also knew that the improvements were being made during the progress of the work. Whether he had general authority in the protection of defendants’ interest in the property was a disputed question on the trial. The authority was not conceded. But the evidence taken as a whole justified the trial court in concluding that such authority in fact was possessed by him; and the rule guiding this court in such cases will not permit interference with that view. Defendant had express notice of the intended improvements, as indicated to the agent by Robinson before the contract was entered into. That fact is not disputed; it was conveyed to defendant by the letter transmitting the contract for signature. And that he was otherwise informed through the agent that they were actually being made is also made clear enough by the evidence. Notice to the agent was notice to defendant. Jefferson v. Leithauser, 60 Minn. 251. 62 N. W. 277. The fact that Robinson commenced work a little [198] earlier than indicated by tbe letter of tbe agent does not change tbe situation in point of substance. Defendant owned adjoining platted lots 24 and 25, tbe property in question, lot 24 only being sold to Robinson. Tbe building is situated mainly on that and partly on lot 25. Defendant still is tbe fee owner of both lots. Tbe judgment and decree awarding tbe liens of tbe several claimants extends to botb. Tbe contention of defendant that tbe judgment should have been limited to lot 24, tbe one sold to Robinson, or to that portion only of lot 25 as occupied by tbe building, is not sustained. Tbe proceeding is one in rem and extends to and includes tbe real property benefited; in this case botb lots 24 and 25. Tbe bouse in question being in part upon each, tbe premises benefited, to avoid absurd results, must be treated as including botb. This is particularly true on facts like those here involved, defendant being tbe owner of botb lots and of tbe improved building thereon. What would be tbe situation in a case involving separate ownership, and a building is constructed by tbe owner of one lot, inadvertently extended onto tbe adjoining lot of tbe other OAvner, we do not stop to consider. Tbe question is not here involved. On tbe facts here presented tbe trial court was right in including botb lots in tbe judgment, Menzel v. Tubbs, 51 Minn. 364, 53 N. W. 653, 1017, 17 A. L. R. 815. Tbe fact that some of tbe lien statements did not specify botb lots is not a fatal defect. Morrison County Lumber Co. v. Duclos, 138 Minn. 20, 163 N. W. 734; Atlas Lumber Co. v. Dupuis, 125 Minn. 45, 145 N. W. 620. There was no error in tbe allowance of either tbe Tscheda or Albrecht liens. And finding no error in tbe record, in the findings of tbe court or tbe admission of evidence, tbe order appealed from will be and is in all things affirmed.