Huntington etc. Co. v. Harvey Coal & Coke Co.

POFFENBARGER, JUDGE : The bill filed in this cause against the owner of a lot of land and the contractor for the erection of a building thereon, to enforce an alleged mechanics lien, was dismissed upon the theory of a failure of prpof to establish the lien. The appellant insists here upon the sufficiency of the proof, and also upon its right to relief upon the facts stated in the bill, even though the proof offered to sustain the lien should be held insufficient. The plaintiff began its negotiations- for the work as a subcontractor, .but they seem to have extended to the owner of the building, wherefore there is a claim in argument of a [529] direct contract between the plaintiff and th¿ owner. Within thirty-five days from the completion of the work, a notice containing an itemized account thereof was served upon the owner; and, within the statutory period, some sort of a paper was filed in the clerk’s office of the county court of Fayette County, as and for a mechanics lien as appears from an abstract thereof entered of record in said office. At the time the suit was brought, the paper was not found in the office. The bill alleges it contained- all the essentials of a valid mechanics lien claim, including the affidavit required. Neither the paper itself nor a copy thereof having been produced and the validity of the claim, or rather the filing of a sufficient claim, having been denied by the answer, the principal -issue in the case was whether or not the claim so filed was verified. For the appellant it is claimed the answer does not deny the allegation that the account was verified; but there is a general denial of the filing of a sufficient 'account and claim and thle acquisition of a mechanics lien, and this is followed by a denial in general terms of every allegation of the bill not admitted to be true. In the absence of a specific exception, pointing out the particular allegations as to which the plaintiff insists upon an admission or denial, such a general denial suffices. Sandusky v. Farris, 49 W. Va., 150, 166; Richards v. Donahoo, 16 W. Va., 685. No such exception was filed. Some sort of a paper was filed as and for a mechanics lien upon the property proceeded against and for the demand set up in the bill. Cole, president of the plaintiff corporation, and French, its attorney at the time, both swear it was prepared for the purpose. Cole swears he personally served a copy of it upon McGuffin-, secretary and treasurer of the defendant corporation. The transcript from the clerk’s office proves it was filed, and the clerk declares his personal recollection of the filing thereof. Cole, French and the clerk all swear it could not be found in the clerk’s office a short time after it had been partially transcribed upon a record book in the office. The clerk says he searched the file in which it should have been found and other places in the office without avail. French says he and the clerk made thorough search- for it. So its loss has been fully proven. While no' witness says in terms the claim was verified or had [530] an affidavit appended to it, none of them in any way evaded the point. As to- it mo question was asked either directly or indirectly. Enough has been shown to prove the attempt to acquire a lien was deliberate. The claim thereof is mot based upon conjecture, surmise or vague recollection. Cole went to Harvey to secure the money due hie company. He called upon Gibson, the company’s superintendent, for a settlement. Unable to secure any satisfactory arrangement through him, he proceeded to Fayetteville and, with his attorney, examined the records as to the title to the property and the contract under which Armentrout, the principal contractor, had taken the work. Then the paper was prepared, a copy of it served and the original sent to Fayetteville for recordation. French swears that, in the preparation thereof, he followed “a blank form, given in the session laws” he had just mentioned, meaning tihle Acts of 1903. That form includes an affidavit. It is not only appended at the end of the form of notice and claim, but referred to in the body thereof also. Thus appealing to both the eye and the mind it could not well have been overlooked. In substance and effect both Cole and French say the paper contained all the statutory requirements, and their testimony in this form is evidence of the filing of - a verified claim. Being such and unopposed by any evidence to the contrary, it suffices, unless its effect is nullified by an admission. Having been -shown an exhibit, purporting to be the account without the affidavit, Cole said, in one portion of his testimony, it was a correct copy of the “itemized account” he had served, -and this is relied upon as such an admission. But it clearly is not. The question did not cover the entire paper. It stopped with the account embodied in it. He was not asked whether it was a copy of the paper served and recorded. Later -he was asked whether the itemized account of which 'be had spoken was “part of that notice and lien” and replied that it was. Not merely part, but all, he said must be considered upon the inquiry for his meaning. French says the paper he prepared “contained an itemized account, consisting of 37 pages”. The testimony ■of both shows, by necessary implication, at least, that the paper served and filed embraced more than the bare account, [531] and so does tbe memorandum in tbe clerk’s office. Tbis evidence is supplemented, too, by this circumstance. The stockholders recognize this claim as one for which the company was, or at least might be, liable; for, in the computation of the value of their stock for the purposes of a sale thereof, they included it among the debts of the company. The rule requiring a party to produce decisive proof in his possession, when the evidence adduced leaves an issue in doubt, does not apply. Here there was not evidence pro and con, evidence opposing evidence. What there is all tends in the same direction and favors the plaintiff. The rule applies only when a prima facie case has been made and a doubt has been cast upon it by rebuttal evidence or otherwise. Stout v. Sands, 56 W. Va. 663. Sometimes the conduct of the parties in the course of litigation is treated as evidence, as the rule just referred to shows, but the conduct it contemplates is not the only kind to which the courts accord the force of evidence. As Judge Beannon observed in some case, the style of which is not now recalled, their conduct may amount to a concessum of an issuable and material fact. The first one of a series of bonds not having been produced in a suit in which it obviously had a place, if not paid1, the court said, “It may be regarded as a concessum that it has been paid in some way, for the purposes of this case”. Barbour v. Duncanson, 77 Va., 83. The conduct of the defendant here purports an admission of the verification of the claim, if one was filed, or an oversight in the examination of the witnesses, which amounts to about the same thing, since, in that ease, the issue as to verification was not in mind at all during the process of examination and cross-examination. The witnesses having said a claim in conformity with the statute had been filed, evidence necessarily implying verification, the defendant did1 not ask whether the paper was sworn to. Obviously, therefore, its attorneys either did not care to enter upon an inquiry as to that particular or inadvertently omitted to do so. For the reasons here stated, the decree complained of is erroneous and will be reversed, and a decree will be entered here, declaring a lien in favor of the plaintiff for the unpaid [532] portion of its claim and remanding the canse for ascertainment of the amount due and execution in other respects. Reversed and Remanded.