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lien is situated, and within ninety days after clared the local law of Arkansas under secthe things aforesaid shall have been furnish- tion 6906 on the question under consideraed or the work or labor done or performed, tion here in these, words: a just and true account of the demand due “If the materials were furnished, under or owing to him, after allowing all credits, one contract, he should file the account withand containing a correct description of the in ninety days after the last was delivered; property to be charged with said lien, veri- but, if the materials were furnished under fied by affidavit.” Section 6922.

separate and distinct contracts, it should be Between May 2, 1921, and the 27th day of filed under each contract, within the time November 1921, the Midco Company was limited. Livermore v. Wright, 33 Mo. 31; 2 the owner in possession of oil and gas leases Jones on Liens, $$ 1431-1434, and case3 upon, and leasehold estates in, the Rowland cited. If, however, he began to furnish farm and the Baker farm in Arkansas. On 'without any specific agreement as to the October 10, 1921, the tank company filed a amount to be furnished,' or the time within notice of a mechanic's lien for $10,504.10 which they were to be furnished, and there for work done, material and fixtures fur- was a “reasonable expectation that further nished, and erections and improvements material' would be required of him,' and he made on the Midco Company's two lease- was 'afterwards called upon from time to hold estates at the request and on the orders time to furnish the same,' he should file it of the Midco Company. The notice claimed within ninety days after the last item was a lien for $7,062.40 on the Rowland farm delivered. In such a case, if the materials and $3,441.70 on the Baker farm. The court were 'furnished at short intervals, and were below entered a decree by which it allowed appropriate to the condition and progress of a lien on the Rowland farm for $3,441.70; the building,' a presumption would arise that but it refused to sustain the tank company's it was understood from the beginning that claim for a lien for items of labor and mate- the 'materialman was to furnish the same' rial furnished on the Rowland farm on May for the construction of the building as the 10 and June 1, 1921, aggregating $3,620.70, same should be required; and the account and refused to sustain a lien for materials therefor should be considered as one conand labor worth $3,441.70 furnished and tinuous account and one demand; and the erected on the Baker farm on June 1, 1921, last item thereof would be the date from because these items were not furnished with which the limitations of the time of filing' in 90 days preceding October 10, 1921, when should be taken. Trustees v. Heise, 44 Md. the notice of lien was filed.

453; Jones v. Swan, 21 Iowa, 181, 184; 2 [1] Counsel for the tank company insist, Jones on Liens, SS 1435, 1436, and cases and counsel for the Midco Company deny, cited. that a mechanic's lien for these items was "When the defendant purchased of the lawfully secured by the notice filed on Octo- plaintiffs the first lot of lumber, he made ber 10, 1921, under the provisions of sec- no contract to buy any other material, but tion 6906, as that section has been constru- said to them that he might need more. He ed by the Supreme Court of Arkansas. The did need it, and called upon them from time construction of that section by that court is to time to furnish the same, which they did, clearly stated in Kizer Lumber Co. v. Mose- and charged it to him on account. It was ly, 56 Ark. 544, 20 S. W. 409, and that con- furnished at short intervals, and, it seems, struction has been repeatedly affirmed in its was appropriate to the progress of his later decisions. Midland Valley R. R. Co. v. house, and he used it in building the same. Maron Belt & Nut Mfg. Co., 91 Ark. 108, The presumption is it was furnished under 111, 120 S. W. 396; Marianna Hotel Co. v.

one contract; and the amounts due for the Livermore Fdry. & Mch. Co., 107 Ark. 245, same should be treated as one demand. The 253, 254, 154 S. W. 952;

Tenney v. Sly, 54 consequence is, the time for filing the acArk. 93, 95, 96, 14 S. W. 1091; Burel v. count for all the materials furnished comEast Ark. Lbr. Co., 129 Ark. 58, 61, 62, 64, menced running from the date of the last 65, 195 S. W. 378, 10 A. L. R. 1017.

item of the same, and plaintiffs have a lien In the Kizer Lumber Company Case the for the whole of it.” action was brought to enforce a mechanic's [2] The federal courts uniformly follow lien for numerous items of lumber furnish- the construction by the highest court of a ed at different times for the construction state of its Constitution and statutes, where of a building by the lienor to the amount of no question of a violation of the Constitu$184.10, only $21.26 of which was for lum- tion or laws of the United States or of genber furnished within the 90 days before the eral or commercial law is involved, and there filing of the notice of lien. The court de- is no such question in this case.

3 F.(20) 122 [3] Counsel for the tank company insist, farm; that company owned other leases in and counsel for the Midco Company deny, the vicinity of El Dorado, Ark.; contemplatthat under the evidence in this case all the ed the purchase of other leases; was drilling items in the notice of lien were furnished wells on some of its leasehold estates, and under one contract made before any of them intended to produce oil and operate under were furnished. The tank company's coun- its leases. E. W. Moutrey had charge of its sel also contend, and counsel for the Midco operations in the vicinity of El Dorado, and Company deny, that, if there was no such J. B. Walker was the field manager of the contract, yet the facts of this case are anal- tank company, which kept a stock of tanks, ogous to those in the case of the Kizer Lum- appurtenances, and other articles required ber Company, and bring it far within the in the operation of leases for the production rule stated in the last paragraph quoted of oil and gas on hand. In May, 1921, the from the opinion in that case. The argu- Midco Company was drilling wells on the ments and authorities of counsel upon this Rowland farm. Mr. Moutrey and Mr. Barr, question have been exhaustively examined who represented the Midco Company, then and deliberately considered. All the evi- inquired of Mr. Walker of the tank comdence has been carefully read, and our con- pany if that company would be able to take clusions are: First, there was no express

care of the Midco Company if it should contract before any of the materials and want tanks, and Mr. Walker told them that fixtures were furnished by the tank com- the tank company had tanks in stock and pany so clear and definite in its terms that others coming in, but that it did not know it bound either party to buy or sell any spe- when it would be out, and suggested that it cific quantity of the materials, tanks, or would furnish the Midco Company all the fixtures, or to do any specific amount of tanks it had in stock, and that the latter work; but, as fast as any of the tanks, company keep it advised in anticipation of materials, and fixtures were furnished, or its wants. Mr. Walker, for the tank comany of the work was done by the tank com- pany, promised on notice in sufficient time pany, a contract by the Midco Company to have on hand all the tanks the Midco to pay for them was made. Cold Blast Company needed, to haul them to their reTransportation Co. v. Kansas City Bolt & spective locations on the leasehold estates, Nut Co., 114 F. 77, 79, 80, 52 C. C. A. 25, and to erect them. Mr. Moutrey or Mr. 57 L. R. A. 696. Second, there was before Barr informed Mr. Walker that they anticiand when the first item of tanks, materials, pated using a large carload of tanks; that or fixtures specified in the notice of lien this was the amount they thought they was furnished, and before the first work should need. Pursuant to this conversation there specified was done by the tank com- on the order of the Midco Company the tank pany for the Midco Company, and contin- company on or about May 10, 1921, furuously thereafter until all the items were nished the materials and labor, and erected furnished, a reasonable expectation that on the Rowland farm three steel tanks with further tanks, materials, fixtures, and work stacks and flanges at their regular prices, would be required of the tank company by aggregating $3,372.70, and on June 1, 1921, the Midco Company, and such further tanks, a gas trap for $248. It also furnished in the materials, etc., were afterwards furnished at same way on June 1, 1921, upon the Baker the call of the Midco Company until the last farm, three steel tanks with stacks and item in the notice was furnished. The tank flanges at their regular prices, aggregating company furnished them from time to time $3,441.70. On August 22, 1921, it furnishat short intervals, and the Midco Company ed and erected on the Rowland farm on the used them for the purpose for which it stat- Midco Company's order three steel tanks ed it would want them before any of them with stacks and flanges at the price of $3,were furnished, so that the facts of this case 441.70. The court below allowed a lien for bring it far within the line distinguishing this last item because it was within the 90 valid mechanics' liens from the others estab- days preceding the filing of the notice of lished by the paragraphs quoted above from lien, and disallowed the claim of lien for the opinion in the Kizer Lumber Company the preceding items. Mr. Walker testified Case.

that all these items were furnished pursuThese facts from which this conclusion is ant to the first conversation, which he called drawn the preponderance of the evidence es- the agreement, and that all the items furtablished: Prior to May 3, 1921, the Mid- nished did not exceed a large carload. Askco Company had acquired and owned lease- ed, “Now, when these first tanks were furhold estates for the extraction of oil and nished in May, 1921, did you understand gas from the Rowland farm and the Baker that that concluded the contract which you

had with them to furnish tanks, or there Second, that the tank company did not would be more ” he answered, “Oh, no, no, give 10-day notice before filing the notice sir; that we were to furnish all the tanks of lien to the owner or owners of the leasethey used while they were operating there." hold estates that it held a claim against the As from time to time the Midco Company's erections or improvements, the amount orders for these various items were receiv- thereof, and from whom it was due, as reed, the tank company sent bills for the re- quired by section 6917. But that section spective items stating the places and terms reads: "Every person, except the original of payment therefor and the location of the contractor, who may wish to avail himself erections or improvements. For example, it of the benefit of the provisions of this act sent a bill for the items ordered May 10, shall give ten days' notice before the filing 1921, consisting of two 1,000 barrel and one of the lien," etc., and the tank company was 500 barrel, bolted steel tanks with stacks the original contractor, and thus excepted and flanges on that day, and completed the from the requirements of that section. erection of the tanks on the Rowland farm T hird, that section 6925 provides that "all on May 16, 1921. Each tank and its ap- liens created by virtue of this act shall be purtenances when completed, so far as its enforced in the circuit court of the county capacity to do its work was concerned, was wherein the property on which the lien is separate from and operative independent of attached is situated," and no action to enthe other tanks and items claimed under force this lien has ever been commenced in the notice of lien.

that court. But in cases wherein, as in this [4-8] Counsel for the Midco Company in case, a party by virtue of the amount inopposition to the conclusion to which this volved and the residence and citizenship of evidence has forced our minds argued and the parties, or by virtue of other facts vestcited authorities, principally from the courts ing jurisdiction in the federal court, is enof other states and from the federal courts titled to invoke its jurisdiction to enforce considering the statutes of other states than its lien, the power is vested in and the duty Arkansas upon these grounds:

is imposed upon that court to enforce the First, that the evidence did not establish civil rights and remedies of that party creata single contract for all the items specified ed by the statutes of the state and enforcein the notice of lien which was binding up- able in the courts of that state. National on both parties, but evidenced separate and Surety Co. v. State Bank, 120 F. 593, 56 C. independent contracts for the items ordered C. A. 657, 61 L. R. A. 394; Darragh v. Wetat different dates. But, while this objection ter Mfg. Co., 78 F. 7, 14, 23 C. C. A. 609; might and doubtless would be fatal to a Morrill v. American Reserve Bond Co. (C. claim of mechanic's lien in an analogous case C.) 151 F. 305, 316; In re Purvis (D. C.) arising under the construction given to sim- 293 F. 102; Phillips on Mechanics' Liens ilar statutes in some of the other states (Ber(2d Ed.) § 313. let v. Lehigh Valley Silk Mills (C. C. A.] Fourth, that the tank company did not 287 F. 769; Sloss-Sheffield Steel & Iron commence its suit to foreclose its lien withCo. v. Payne, 186 Ala. 341, 64 So. 617; in 15 months after the filing of the lien, as Baxter v. Cherryvale Oil Co., 111 Kan. 621, required by section 6926. But the notice 208 P. 568; Fitzpatrick v. Ernst, 102 Minn. of lien was filed on October 10, 1921. On 195, 113 N. W. 4; Trustees of the German May 20, 1922, far within the 15 months, the Lutheran Church v. Heise & Co., 44 Md.

tank company, pursuant to the ancillary bill 453: Chase y. Garver Coal & Mining Co. of the trustees in the mortgage and the ac90 Iowa, 25, 57 N. W. 648), it is not ten

tion of the court making it a party to the able in this case because, as we have seen,

foreclosure suit, filed its answer and cross

complaint, asserted its mechanic's lien, and the rule of property upon this subject has

prayed for its enforcement. No other suit been finally established to the contrary by

was required by the statute to enforce this repeated decisions of the Supreme Court of

lien because that suit accomplished the purArkansas construing the mechanic's lien law

pose of the statute. of that state, and the decisions of the courts

Fifth, that the tanks for oil and gas or of other states and of the federal courts gas traps such as were furnished in this case interpreting the statutes of other states may do not constitute "any material. fixtures. not prevail over that rule in the federal engine, boiler or machinery for any buildcourts when enforcing the local law of that ing. erection, improvement upon land," or state. Their duty is to follow and enforce the work of furnishing or erecting them, for that rule in Arkansas, and thus avoid con- which a lien may be claimed under the statflicting decisions over questions of local law utes of the state of Arkansas. But in our and local rules of property.

opinion this objection is far from tenable.

state. when over

3 F.(20) 127 One of these 1,000 barrel tanks furnished

In re RUSKELL. and claimed under this lien was 22 feet in FARMERS' STATE BANK OF BELMONT, diameter, 16 feet in height and weighed

WIS., V. PRUSSING. about 4 tons. There is in our minds no

(Circuit Court of Appeals, Seventh Circuit. doubt that such a tank and its appurte

November 20, 1924.) nances and fixtures placed upon land upon which oil was produced or was about to be

No. 3398. produced was an erection and an improve- 1. Bankruptcy m467-On appeal from determent thereon.

mination, adversely to creditor, of sole quesSixth, that the tanks, their appurtenances,

tion of fact presented by creditor's interven.

Ing petition, no further question for determi. the fixtures, and materials were sold in the

nation. ordinary course of business on the personal Where sole question of fact presented by credit of the Midco Company without any intervening petition in bankruptcy trustee's single contract contemplating their location proceeding to remove cloud on bankrupt's propon specific realty. The evidence, however, is

erty was determined adversely to petitioner,

there was no further question for consideration convincing that the tanks and other items on appeal, because only such order could have were sold and ordered placed upon respec- been made, favorable to petitioner, as was retive leasehold estates of the Midco Company quired by allegations of intervening petition, and on either the Rowland farm or the Baker

though other relief than that specifically prayed

could be granted under general prayer, it could farm. The bills for the items purchased

only be such as would be consistent with spestated on their faces the farm for which cific prayer. they were ordered, and the inference from

2. Bankruptcy Om458-Issues not presented to this evidence that each item was purchased District Court not considered on appeal. for a specific leasehold estate of the Midco Issues which should have been presented to Company is irresistible.

District Court by creditor, intervening in proLet the part of the decree below which ceeding to remove cloud on title to bankrupt's denied the tank company a mechanic's lien property, but were not, could not be considered

on appeal. on the Rowland farm for $3,620.70 and allowed a lien for only $3,956.70 be reversed, Appeal from the District Court of the and let the decree below be so modified as to United States for the Western District of allow the tank company a lien on that farm Wisconsin. for $7,577.40 and interest at 6 per cent. per

In the matter of C. F. Ruskell, bankrupt. annum from September 22, 1921. Let that

Proceeding by Frank H. Prussing, as truspart of the decree which denied the tank

tee in bankruptcy, to remove cloud from · company & mechanic's lien on the Baker

bankrupt’s property, wherein the Farmers' farm for $3,441.70 and allowed a lien there

State Bank of Belmont, Wis., intervened. on for only $85 be reversed, and let the

Decree for trustee, and intervener appeals. decree be so modified as to allow it a lien on

Affirmed. that farm for $3,526.70 and interest thereon at 6 per cent. from September 22, 1921, LetA. W. Kopp, of Platteville, Wis., for apthat part of the decree which directs the pellant. proceeds of the property ordered to be sold, Wm. Ryan, of Madison, Wis., for apand any moneys in the hands of the receiv- pellee. er as the result of the operation of the prop- Before ALSCHULER, EVANS, and erty at the date of the confirmation of the PAGE, Circuit Judges. sale to be applied “(2) To the payment of the sum of $4,041.70, together with interest PAGE, Circuit Judge. In June, 1923, thereon at 6 per cent. from the 22d day of appellee, as trustee of C. F. Ruskell, a volSeptember, 1921, to defendant American untary bankrupt, filed his petition in the Tank Company for and on account of the District Court, alleging possession of the lien of said American Tank Company,” real estate and personal property of bankbe so modified that it shall order such rupt, and that in February, 1922, bankrupt, proceeds and moneys to be applied “(2) with his wife, executed and delivered a deed To the payment of the sum of $11,104.- to the real estate in question to one John 10, together with interest thereon at 6 Ruskell for the purpose of placing the title per cent. from the 22d day of September, in said Ruskell in trust, to sell and pay the 1921, to defendant American Tank Com- creditors of bankrupt; that there was no pany for and on account of the lien of said change of possession, and bankrupt continuAmerican Tank Company," and let the tank ed to occupy and carry on the business of company recover its costs in this case in farming said real estate as if there had been this courte

no sale; that said Ruskell made no claim to the property by virtue of said deed; that the in failing to do so, and because it alleged deed was recorded and constitutes a cloud it was a judgment creditor of John Rusupon the title to the real estate. The peti- kell, appellant asked and was granted pertion also recites the making of a chattel mission to intervene on one issue only, viz.: mortgage on the same date the deed was “That said deed and chattel mortgage were made, as a part of the same transaction, and given for the purpose of securing the said for the same purposes; that John Ruskell John Ruskell on his said indebtedness and makes no claim to the chattel property by indemnifying him against loss by reason of reason of the mortgage; that the chattel the said assumption of liability as surety as property is in the possession of the trustee, aforesaid." and said mortgage constitutes a cloud upon Appellant here ignores the fact that it the title. The prayer is that John Ruskell asked and was allowed to intervene in the and Isabel, his wife, be required to show District Court on the theory that, as a cause why the deed and mortgage should judgment creditor of John Ruskell, it should not be held void.

be permitted to make a defense to the trusIn July, after the entry of a rule upon tee's petition, which John Ruskell was John Ruskell and wife to show cause why fraudulently failing and refusing to make, the prayer should not be granted, appellant namely, that whatever interest was conveyed filed an intervening petition, alleging that it by the deed and chattel mortgage to John was a judgment creditor of John Ruskell, Ruskell was an interest wholly for his perand reciting the conveyances from bank- sonal benefit, and not as trustee for all of rupt to John Ruskell, substantially as set bankrupt's creditors. It admits, however, out in the trustee's petition. It was further that the issue upon the question of fact was averred that about the time of the deliv- resolved against it by the District Court. ery of the deed and chattel mortgage bank. After a careful review of the record, we are rupt was indebted to John Ruskell in & of opinion that there is no justification for large sum, and, in addition, John Ruskell disturbing the finding of the referee and the had become indorser for bankrupt to a District Court that the deed and chattel large amount; that the deed and chattel mortgage were made to John Ruskell, as mortgage were given for the purpose of trustee for all of bankrupt's creditors, and securing the said John Ruskell on his said were not made for the sole personal benefit indebtedness and indemnifying him against of John Ruskell. The intervening 'petition loss by reason of his assumption of liabil- presented only a question of fact, and, with ity as surety. The petition further shows, that question determined against appellant, in answer to the trustee's petition, that there is no further question here for con- . “John Ruskell appeared, without counsel, sideration, because, upon the intervening and did not in good faith resist the said petition, only such an order could have been order to show cause, * * * and is fraud- made, favorable to appellant, as was justiulently contriving to defeat his creditors"; fied by the allegations of the intervening that, as John Ruskell had no other prop- petition, and while other relief than that erty, the petitioner would suffer great and specifically prayed may be granted under a irreparable loss if John Ruskell's rights in general prayer, it can only be such relief the property in question were not preserv- as is consistent with the specific prayer. This ed; and that, unless petitioner be permitted principle is so old as to hardly need citation to intervene, the property of John Ruskell of authorities. English v. Foxall, 2 Pet. will be dissipated and creditors defrauded. 611, 7 L. Ed. 531; Hobson v. McArthur, 16 The prayer of the intervening petition is: Pet. 195, 10 L. Ed. 930; Boone v. Chiles, 10 “That an order may be entered, declaring Pet. 228, 9 L. Ed. 388. said deed hereinbefore referred to an equi- [2] 2. But appellant claims that "issues table mortgage, and holding said equitable of law were based on the finding of the mortgage and chattel mortgage valid and court that the transaction was an attempted subsisting in favor of John Ruskell.” assignment for the benefit of all creditors There is also a prayer for general relief. and void for various reasons assigned."

[1] 1. The trustee's petition, directed Whether the transaction was an attempted only against John Ruskell and his wife, pro- assignment for the benefit of creditors, or sented the issue, upon the facts alleged, as whether it was an equitable mortgage for to whether the deed and chattel mortgage the sole personal benefit of John Ruskel!! should be canceled and set aside as a cloud is the same question of fact, which we have on the trustee's title. Neither John Ruskell found, and which appellant admits, was denor his wife contested the petition, but, be- cided adversely to it; so that that question cause of alleged bad faith on Ruskell's part cannot be open to further discussion.

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