HOLTZMAN v. BENNETT, Et Al.
Holtzman v. Bennett
HOLTZMAN v. BENNETT, Et Al.
HOLTZMAN v. BENNETT, Et Al.
No. 2634
November 3, 1924.
229 Pac. 1095.
A. Jurich and J. M. Lockhart, for Appellants:
Chandler & Quayle, for Respondent:
OPINION
By the Court,
Coleman, J.:
This action was instituted to foreclose several mechanics' liens assigned to the plaintiff. Judgment was rendered in favor of the plaintiff as prayed in the complaint, from which, and from an order denying a motion for a new trial, an appeal has been taken. The facts will sufficiently appear from the opinion. The parties will be referred to as plaintiff and, defendants as in the trial court.
The first error assigned is that there is a fatal variance between the forms of the contract stated in the lien statement, the allegations of the complaint, and the proof.
The lien statements set forth the precise terms of the alleged contract relied upon, whereas the complaint alleges that the work performed was so performed at the special instance and request of the defendants of a definite value, which the defendants agreed to pay therefor.
There was no variance justifying the contention urged. Lien statutes are liberally construed in this jurisdiction with a view of effectuating their object and purpose. Ferro v. Bargo M. Co., 37 Nev. 139, 140 P. 528, and it is a well-recognized rule that, when the lien statement sets forth an express contract, and an implied contract is pleaded and proven, or vice versa, there is no such variance as will preclude recovery under the lien statement. Foulger v. McGrath, 34 Utah, 86, 95 P. 1004; Lucas v. Rea, 10 Cal. App. 641, 102 P. 822; Horton v. Emerson, 30 N. D. 258, 152 N. W. 529; Wright v. Lake, 48 Wash. 469, 93 P. 1072. See section 2217, Revised Laws.
It is next assigned as error that "the court erred in finding that the labor of the various claimants was performed at a reasonable value." In support of this assignment it is said in the brief of appellant:
"The liens all allege employment at a fixed rate of day pay, and the evidence of the witness Fuller also bears that out. The findings are certainly contrary to the evidence, for outside of the complaint, there is nothing in the record to indicate that defendants agreed to pay for said services whatever they were reasonably worth."
If we correctly interpret the brief of appellant, it simply contends that evidence of a contract value of services rendered will not support a judgment on a quantum meruit. Such is not the law of this state. Burgess v. Helm, 24 Nev. 242, 51 P. 1025.
Error is assigned to the ruling of the trial court relative to plaintiff's Exhibit 2. In reference to this assignment we may say that three companion cases are before the court on appeal growing out of the alleged indebtedness incurred by the defendants. The records in these three cases inclosed in one package, and a lot of exhibits contained in another package, were received by the clerk at the same time. These exhibits do not indicate in what case they were received in evidence, and it is impossible for this court to determine. We find one document marked in one place, Plaintiff's Exhibit 2, and in another place, Plaintiff's Exhibit Q. The exhibit does not show on its face what it is for, or in what case it was used as an exhibit. It is not incumbent upon this court to draw upon its imagination, but it is incumbent upon attorneys bringing cases here to see to it that the record is in proper shape and intelligible. So far as we are able to say, there is no merit in the assigned error.
It is also contended that the trial court erred in refusing to strike from the evidence the lien claim of the Ely Lumber and Coal Company upon the ground that the proof shows that the last item of the claim was not for goods, wares, and merchandise sold and delivered, as stated in the lien statement, but was for services rendered in hauling oil. Section 2217, Revised Laws, as amended (Stats. 1917, p. 44, sec. 1), provides:
"Upon the trial of any action or suit to foreclose such lien no variance between the lien and the proof shall defeat the lien or be deemed material unless the same shall result from fraud or be made intentionally, or shall have misled the adverse party to his prejudice, but in all cases of immaterial variance the claim of lien may be amended to conform to the proof."
The evidence shows that the original lien statement was introduced in evidence without objection. When it appeared from the evidence that there was a variance between the statement and the proof, the plaintiff sought and was permitted to amend the statement to conform to the proof. The only question is: Did the court abuse its discretion in the matter ? If the services for which this item is sought to be made chargeable is one for which a lien might have been stated in the first instance, no error was committed. By section 2231, Rev. Laws, it is provided that all persons performing labor for the carrying on of any mill shall have a lien. Since oil is necessary in the operation of a mill, we think the item is one for which a lien may be asserted. In Re Hope Mine Co., 1 Sawy. 710, Fed. Cas. No. 6681.
It is also contended that the court erred in sustaining a lien upon too much land for use in connection with the mill. Counsel says the "testimony shows that only between 50 and 150 feet around the mill was required for its operation." The only testimony on this point is that given by the defendant McCulloch, who testified as follows:
"Q. Do you know the amount of ground necessary for the operation of such a mill as is on this ground, as is supposed to be? A. The dimensions of the mill covering all the machinery that is used is probably 60 by 205 feet.
- "Q. How much additional ground would be necessary for the operation of that mill in ybur judgment ? A. The .mill would operate inside the building.
"Q. Yes, but the surrounding ground? A. Oh, it is hard telling. I can't tell.
"Q. Would you say 50 to 100 feet all around the building? Would that be sufficient for the operation of the mill ? A. If the mill ran for ten years, no.
"Q. Well, we are talking about now? A. It wouldn't require any amount of ground around it to run it the way it is running now.
"Q. Well, suppose it wás operating now. How much would it require? Would it require as much as fifty feet around? A. Yes, I believe 50 feet around would be sufficient."
The amount of ground shown to be necessary for the operation of the mill by the above testimony was estimated upon a basis of present needs. It made no allowance whatever for the future operation of the mill. Such is not a fair basis upon which the court could make an order for future operations.
As was pointed out by Judge Hawley in Salt Lake Hardware Co. v. Chainman etc. (C. C.), 137 F. 632, there must be ground for dumps, tailings, supplies, and for the convenient use and operation of the property. See, also, Gould v. Wise, 18 Nev. 253, 3 P. 30; Western Well Works, Inc. v. California Farms Co. et al., 60 Cal. App. 749, 214 P. 491. We perceive no prejudicial error in the matter complained of.
Error is assigned to the ruling of the court in rendering judgment upon a claim for services performed as a cook. In support of this assignment our attention is directed to the case of McCormick v. Los Angeles Water Co., 40 Cal. 185, wherein it was held that there could be no lien for services rendered as a cook. It is contended, however, that the statute under which the lien is asserted in this case is different from the one therein construed. In this case it is sought to enforce the lien pursuant to section 2281, Rev. Laws, above alluded to. The case of Malone v. Big Flat G. Co., 76 Cal. 578, 18 P. 772, which is a case wherein it was held that a blacksmith was entitled to a lien for work done in sharpening picks, drills, etc., used in the mine, is cited in support of the contention. That decision was based upon a statutory provision to the effect that such tools should be deemed affixed to the mine. In view of this law, the work was done upon the mine itself. It is clear that this case is not in point. A lien cannot be asserted, except where authorized by statute. The cook did no work in connection with the operation of the mine, and can assert no lien. Clark et al. v. Beyrle et al., 160 Cal. 306, 116 P. 739.
December 13, 1924.
It is also contended that the court erred in denying the motion to consolidate the actions to foreclose mechanics' liens against the defendants. We think this contention is well founded. As pointed out in the opinion on rehearing in Daly v. Lahontan Mines Co., 39 Nev. 14, 151 P. 514, 158 P. 285, suits to foreclose mechanics' liens against a defendant should be consolidated.
It is ordered that this case be remanded to the trial court, with directions that it modify its judgment in accordance with the views herein expressed, and that it further proceed in the premises in accordance with law and rules of practice in such cases made and provided, and, as so modified, it is ordered that the judgment be affirmed.