PRESUMPTIONS RULINGS AT TRIAL. as he proposed to show, the contract rate | amount of his claim, and the only matters to be as alleged by him would leave him a small, proved are the credits allowed to defendants. though substantial, margin for other ex[Ed. Note. For other cases, see Mechanics' penses or for profit. If the price was fixed Liens, Cent. Dig. § 547; Dec. Dig. § 277.*] as alleged by plaintiff, this margin would be 3. APPEAL AND ERROR (§ 932*)-REVIEWsubstantially all absorbed in payment of wages, leaving nothing to meet the other current expenses or to pay a profit. [2] By the exclusion of this evidence we are of opinion that the defendant was prejudiced. It is true that upon defendant's theory of the contract the amount of gross income left would be small; yet this does not demonstrate that his version of it is unreason ́able. It is not unreasonable to suppose that the rate of wages was fixed with reference to what the average income from the sales made by the plaintiff during the entire season would justify, and hence that defendant's statement was true. [3] It is argued by counsel for plaintiff that the purpose for which the testimony was offered was not made apparent by the offer itself, and hence that the court did not commit error in its ruling. With this contention we do not agree. The evidence could have had no other purpose than that which we have stated, and that it was competent for that purpose is apparent. We have examined the one other assignment made by counsel, and concluded that it does not merit special notice. Where the evidence in a proceeding for the enforcement of a mechanic's lien is such that it cannot be ascertained how the court and plaintiff, the court in disposing of the case jury arrived at the amount awarded to the will give plaintiff the benefit of the presumption that all contested questions of fact were decided in his favor. Error. Cent. Dig. § 3782; Dec. Dig. § 932.*] [Ed. Note.-For other cases, see Appeal and 4. MECHANICS' LIENS (§ 281*)-ENFORCEMENT -WEIGHT AND SUFFICIENCY OF EVIDENCE. In a proceeding to enforce a mechanic's lien, evidence held insufficient to support the verdict for plaintiff. Liens, Dec. Dig. § 281.*] 5. MECHANICS' LIENS (§ 239*)-AMOUNT OF Where a subcontractor employed on defendants' building has had an account with the contractor for work and material on contracts for other buildings, he has no right to credit the contractor on their old account for material which actually went into the defendants' building, since the defendants are entitled to have these amounts credited to their building. [Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. § 421; Dec. Dig. § 239.*] 6. CONSTITUTIONAL LAW (§ 248*)-ENFORCEMENT-FEES AND COSTS - CONSTITUTIONALITY OF STATUTE. Rev. Codes, § 7166, allowing an attorney's The judgment is reversed, and the cause fee to claimants of mechanics' liens, is unconis remanded for a new trial. Reversed and remanded. . SMITH and HOLLOWAY, JJ., concur. (43 Mont. 129) MILLS v. OLSEN et al. (Supreme Court of Montana. March 29, 1911.) 1. MECHANICS' LIENS (§ 147*)-PROCEEDINGS TO PERFECT-FORM AND REQUISITES-STAT UTES. Rev. Codes, § 7291, requires that a notice of mechanic's lien shall state under oath that it contains a just and true account of the amount due after the allowance of all credits. Plaintiff's notice of lien set forth with considerable detail the contract between himself and the contractor, the amount of work done, including extra work, the amount of materials furnished, stated the balance claimed to be due, and also stated "that these items are correct," and was signed by plaintiff, and bore a jurat reciting that it was subscribed and sworn to before a notary public. Held, a sufficient notice. [Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. § 253; Dec. Dig. § 147.*] 2. MECHANICS' LIENS (§ 277*)-ENFORCEMENT -ISSUES, PROOF, AND VARIANCE-MATTERS TO BE PROved. Where it is admitted by the defendants in a proceeding for the enforcement of a mechanic's lien that plaintiff will testify that the items set out in the claim are correct, there is a prima facie case for the plaintiff for the full stitutional. [Ed. Note.-For other cases, see Constitutional Law, Dec. Dig. § 248.*] SMITH, J. This action was begun in Missoula county by W. H. Charnley to foreclose a mechanic's lien. After trial Charnley died, and Mills, as his administrator, was substituted. In discussing the case we shall refer to Charnley as the plaintiff. The complaint alleges that the defendants Lacasse were the owners of certain lots in the city of Missoula; that they made a contract with Olsen & Johnson to erect a building thereon; that the latter contracted with Charnley to do the lathing and plastering, for which they promised to pay him at the rate of 36 cents per square yard; that Charnley agreed to furnish all materials used by him; that •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 115 P.-3 Olsen & Johnson should advance the money necessary to pay for materials as needed, the remainder of the contract price to be paid for as the work progressed; that, if Olsen & Johnson could purchase materials cheaper than could Charnley, they were to do so, and give him the benefit of such reduction in price; that they were to do all hoisting of materials without expense to Charnley, and were to pay him the reasonable value of all extra work; that plaintiff did 17,087 yards of plastering and performed extra work, all of which amounted to the sum of $6,432.42, no part of which has been paid except the sum of $3,740.13, leaving a balance due of $2,692.29, for which amount plaintiff filed and claims a lien upon the building. We shall refer to the defendants collectively. For answer they admitted that Olsen & Johnson entered into a contract with Charnley to lath and plaster the building at 36 cents per square yard; alleged that Charnley was to furnish all material and labor, including water necessary for mixing plaster; denied that Olsen & Johnson were to pay for hoisting materials, but admitted that plaintiff was to have the use of the elevator for that purpose. They denied the amount of work claimed to have been done by him, alleged that the total amount earned under the contract was $5,439.67, on which they had paid in cash and materials the sum of $5,960.50, being an overpayment of $520. 83, for which they demand judgment by way of counterclaim. Plaintiff by reply denied all new matter in the answer. The cause was tried to the district court, sitting with a jury. A general verdict for plaintiff in the sum of $1,348 was rendered, whereupon the court made certain so-called findings of fact which, instead of being of any assistance to this court, are mostly conclusions of law and fact, and entered judgment in favor of the plaintiff for the amount of the verdict, including costs and attorney's fees. From the judgment and an order denying a new trial, defendants have appealed. [1] 1. Appellants' first contention is that plaintiff's notice of lien is fatally defective, in that it fails to state under oath that it contains a just and true account of the amount due him after allowing all credits. as provided by section 7291, Revised Codes. As a matter of fact, the notice of lien sets forth the contract between the parties, the amount of work done, including extra work and the amount of materials furnished, in considerable detail. It gives the total amount of credits or moneys paid thereon, and states the balance claimed to be due. It also states "that items are correct." It is signed by Charnley, and bears a jurat reciting that it was subscribed and sworn to before Harry H. Parsons, a notary public. We think it is sufficient. Black v. Appolonio, 1 Mont. 342; | McGlauflin v. Wormser, 28 Mont. 177, 72 Pac. 428; Neuman v. Grant, 36 Mont. 77, 92 2. The second contention is that the evidence is insufficient to justify the findings, and that the amount found due the plaintiff is excessive. [2] At the trial Mr. Tolan, one of the defendants' attorneys, made this statement: "There is no doubt that the plaintiff will testify that the items set out in this mechanic's lien are correct; that is, with reference to the extra work and all about it." This statement was accepted by the court and opposing counsel, and makes out a prima facie case on the part of the plaintiff for the full amount claimed by him. It is assumed in the brief of appellants that the amount claimed for lathing and plastering is correct, and it is then said: "By this assumption respondent would have as the total amount earned by him under the contract and for extras and the other items charged in his lien the sum of $6,432.42." This amount, then, was fixed at the trial, and the only question is: What credits should have been allowed to the appellants? It will be noted that the jury returned a verdict for about one-half the amount claimed by Charnley. It is impossible to ascertain from the record what particular items of credit they allowed or disallowed. Had proper findings been made in that regard, great assistance would have been afforded this court. Appellants offered in evidence 16 bank checks drawn by them to the order of plaintiff and others, aggregating $3,587.35, all of which are now claimed to be undisputed credits on their account. To this statement, however, the respondent does not agree. Charnley testified that he began work about January 1, 1909, and finished about April 1st of the same year; while Olsen declared that material was delivered at the building for him in the latter part of November or 1st of December. It was agreed that plaintiff had performed work for the defendants Olsen & Johnson in the fall of 1908 on two certain other buildings known as the University Library and the Deschamps building. Charnley testified that Olsen & Johnson were indebted to him for work and labor on these other buildings, and that he gave them credit on these accounts for all moneys paid and materials furnished by them which were not credited by him upon the Lacasse building contract. This was his general statement. repeated many times during the trial. He claimed the right to so apply the payments. No effort was made to show the amounts actually due him on these other contracts. We have never examined a less satisfactory record, and feel that a proper disposition of the case would be to remand it for a new trial, which action would be taken were it not for the fact that Charnley is dead, and such a course would perhaps result in placing his representative at a disadvantage. And we are also reluctant to order a new trial in view of the circumstance that the appellants here had it in their pow requesting a special verdict and specific find- that the amounts and dates substantially ings of fact. It is impossible from the record | correspond in the two statements, with three to tell whether Charnley had any credit bal- exceptions, viz.: (a) Charnley denies that ance in his favor on either the university li- the check for $50 given on January 2d was a brary building contract or the Deschamps credit on the Lacasse building; (b) he gives building. He admitted receiving two car loads no credit for the two checks for $550 and of cement from Olsen & Johnson. As to this $350 given on January 30th and February cement, which he claims was 60 tons at $11 20th, respectively; and (c) Olsen does not per ton, he first said that he gave credit for mention the payment of $300 on January 6th. it on the university library work and the We think the $50 check of January 2d should Deschamps building. Afterwards he said be charged against the plaintiff because he that he allowed it on "this Lacasse job con- testified that the plasterers on the university tract,” and still later he testified that he library and Deschamps buildings finished "did not give them credit for the amount their work on December 24, 1908, on which paid for the plaster on his job in the Lacasse date he received $50 to pay them off. He building." The court ruled, as we under- then said that the check for $50 received on stand it, that Olsen & Johnson were enti- January 2d was given to him for the same tled to credit for the whole of it in any purpose, "just before Christmas," and finally event. admitted that he did not know what it was for unless it was for the plasterers on the Deschamps building, "because there is where the plasterers were working." In view of the fact that the plasterers on the Deschamps building had finished their work, and that plastering on the Lacasse building had begun, it is manifest that, if he paid plasterers with the check, the plasterers referred to were employed on the Lacasse building. He made no attempt to deny that he received a check for $550 on January 30th, and another for $350 on February 20th. When he opened his account with Olsen & Johnson for the Lacasse building about the 1st of January, 1909, he gave them credit for $380.28, overpaid on the two other buildings; so that it is clear that the sum of these two checks, viz., $900, should be credited to Olsen & Johnson on the Lacasse contract as Olsen testified. Having carefully studied the evidence, we are unable to ascertain how the court and jury arrived at the amount awarded the plaintiff. His counsel offers no figures to justify it. Consequently, it is of no significance. [3] We shall therefore dispose of the case in a manner which seems to us substantially correct, giving the respondent the benefit of the presumption that all contested questions of fact were decided in his favor. [4] Charnley testified that he had credited Olsen & Johnson with the following cash payments: 1. Balance overdrawn on previous contracts 2. January 9, 1999, 3. January 6, 1909, 4. January 23, 1909, 5. January 30, 1909, Cash. 64 66 6. February 1, 1909, $ 380 38 100 00 53 25 66 60 32 50 165 00 $3,140 23 received the A great deal of testimony was taken as to whether the $210 check of December 16, 1908, should be charged against Charnley. He testified, in substance, that he received a car load of cement from one Dally in Spokane, and that this check was given him by Olsen & Johnson to pay the freight thereon. He further said, however, that he told them he would not consent to be charged for cement any greater sum than he was obliged to pay Dally, to wit, $11 per ton laid down in Missoula. And he said he purchased this cement at $10.50 per ton f. o. b. Missoula. He was manifestly in error in this, because if the cement was to be laid down in Missoula, free of freight charges, there would have been no necessity for him to get $210 from Olsen & Johnson to pay such charges. Olsen testified that the price of cement in Missoula varied from $14 to $16 per ton. He said that a rebate of $2 per ton was allowed for the return of the sacks, so that the net price of $16 cement was $14. Again, in his account filed with his notice of lien, Charnley credited the defendants with 11⁄2 tons of cement at $14 per ton. Again, if the freight on 60 tons of cement amounted to $210, the charges on one ton would be $3.50, which, added to the price named by Dally, of $10.50, makes $14 per ton, in Missoula, which agrees with all the testimony on the subject. This item of ited. If Deduct this amount from $6,432.42, and we have $319.99, the amount which is a lien against the building. [6] It is contended that section 7166, Revised Codes, giving lien claimants an attorney's fee, is unconstitutional. This court in Wortman v. Kleinschmidt, 12 Mont. 316, 30 Pac. 280, held a similar statute valid. Since that case was decided, however, the Supreme Court of the United States in Gulf, etc., R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 225, 41 L. Ed. 666, the Supreme Court of California in Builders' Supply Depot v. O'Connor, 150 Cal. 265, 88 Pac. 982, 17 L. R. A. (N. S.) 909, 119 Am. St. Rep. 193, Stimson Mill Co. v. Nolan, 5 Cal. App. 754, 91 Pac. 262, Mannix v. Tryon, 152 Cal. 31, 91 Pac. 983, Merced Lumber Co. v. Bruschi, 152 Cal. 372, 92 Pac. 844, Hill v. Clark, 7 Cal. App. 609, 95 Pac. 382, Farnham v. California Safe Deposit Co., 8 Cal. App. 266, 96 Pac. 788, Los Angeles Pressed Brick Co. v. Hig. gins, 8 Cal. App. 514, 97 Pac. 414, 420, and the Supreme Court of Colorado in Davidson v. Jennings, 27 Colo. 187, 60 Pac. 354, Let us revert for a moment to his original statement of account. He there gave credit for $3,740.13, of which $3,140.23 was cash, leaving a balance of $599.90, which must 48 L. R. A. 340, 83 Am. St. Rep. 49, have have been for material; and this material must necessarily have been lath and common lumber, as he received no other, except as above stated. The total value of the lath furnished him was $775.72, and common lumber $29.28, making a total of $805. He swore that he credited it all on the old contracts, but this statement cannot be true. The dif ference or $205.10 is all that could have been so credited. He should, then, be charged with the value of material (lath and common lumber), which he admits in his pleadings and testimony was a proper credit to Olsen & Johnson, to wit, $599.90. The difference between $6,432.42, the total amount due under his contract, and $5,247.33, credits allowed Olsen & Johnson, is $1,185.09, or $162.91 less than the amount of the verdict. In this sum the verdict against Olsen & Johnson and the judgment against them are excessive. [5] So far as the lien is concerned, Charnley had no right to credit Olsen & Johnson on their old account for material which actually went into the Lacasse building. The owners were entitled to have these amounts credited to the building. These credits should be: Lath and common lumber.. $805 00 .... Cement Add to this cash received.. 16 00 991 20 held like enactments to be void. To the same effect are the decisions in Grand Rapids Chair Co. v. Remells, 77 Mich. 104, 43 N. W. 1006; Durkee v. Janesville, 28 Wis. 464, 9 Am. Rep. 500; Railroad Co. v. Morris, 65 Ala. 193; Paddock v. Missouri Pac. Ry. Co., 155 Mo. 524, 56 S. W. 453; Phenix Insurance Co. v. Hart, 112 Ga. 765, 38 S. E. 67; Openshaw v. Halfin, 24 Utah, 426, 68 Pac. 138, 91 Am. St. Rep. 796; Atkinson v. Woodmansee, 68 Kan. 71, 74 Pac. 640, 64 L. R. A. 325; Hocking Valley Coal Co. v. Rosser, 53 Ohio St. 12, 41 N. E. 263, 29 L. R. A. 386; Randolph v. Builders', etc., Supply Co., 106 Ala. 501, 17 South. 721; West v. Wabash R. Co., 118 Mo. App. 432, 94 S. W. 310. We think the reasoning of these cases is unanswerable. In some of the states statutes giving special protection to laborers and mechanics have been upheld, while in others similar statutes have been declared unconstitutional. We have no occasion to pass upon the constitutionality of such statutes in this opinion, and do not do so. Suffice it to say that our statute extends the benefit to materialmen, contractors, and others who do not come within the reason that may justify legislation for the protection of laborers and mechanics. $1,812 20 torney's fees is ordered stricken out. party shall pay his own costs in this court. Modified and affirmed. Each | planted and harvested the 1909 crops. Held, that it was then too late to seek to rescind the contract for fraudulent misrepresentations as to the nature of the land and the value of the crops on it at the time of the sale, since the BRANTLY, C. J., and HOLLOWAY, J., purchaser must have known, when he harvested concur. (42 Mont. 82) OTT v. PACE et al. (Supreme Court of Montana. March 22, 1911.) 1. CANCELLATION OF INSTRUMENTS (§ 37*)— RESCISSION BY PURCHASER-COMPLAINTSUFFICIENCY. the 1907 crops, of any misrepresentations in relation thereto, and have been put on inquiry as to the truth of the statements as to the quality of the land, and the former crops thereon. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 212-214; Dec. Dig. § 119.*] 5. VENDOR AND PURCHASER (§ 33*) - CONTRACT-VALIDITY - MISREPRESENTATION VENDOR-FACTS OR OPINIONS. BY Statements by a vendor of land to a purchaser that the crops on the land would sell for enough to meet the deferred payments, and that the crops then growing on the land were of specified quantities and value, are mere expressions of opinion, the falsity of which will not warrant rescission, and a similar statement that the soil was rich and productive is gener A complaint for the cancellation of a contract of purchase of lands on the ground of false and fraudulent representations as to its character, which merely alleges that, upon the discovery of the falsity of the representations, plaintiff demanded a restoration of the consideration, and offered to return what he had received, is insufficient as against a special de-ally within the same rule. murrer, attacking it for uncertainty in stating when he discovered the facts, since under Rev. Codes, § 5065, prompt action is necessary on discovery of facts warranting a rescission. [Ed. Note. For other cases, see Cancellation of Instruments, Cent. Dig. §§ 66-81; Dec. Dig. § 37.*] 2. VENDOR AND PURCHASER (§ 43*)-CONTRACT-VALIDITY-RIGHT OF RESCISSION. Where a purchaser of land on deferred payments secured by pledge of collateral after learning of the falsity of representations by the vendors as to the character of the lands, which would warrant a rescission of the contract, obtained from the vendors a release of part of the collateral, which he sold to meet the first deferred payment, and subsequently entered into a new contract with the vendors for the purchase of the same lands on more advantageous terms, during all of which time he remained in possession of the premises, it was an affirmance of the first contract and a bar to a rescission, since fraud in inducing a contract does not make it void, but only voidable at the option of the injured party. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 67, 68; Dec. Dig. § 43.*] 3. VENDOR AND PURCHASER (§ 30*)-CON TRACT-VALIDITY-DURESS. The purchaser of land on deferred payments, secured by pledge of collateral, who enters into a new contract with the vendor for the purchase of the same lands on terms more favorable to the purchaser, cannot claim that the second contract was made by him under duress, where the only threat by the vendor was to enforce the provision of the original contract by which the collateral security might be forfeited on failure to promptly meet any of the deferred payments. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 34; Dec. Dig. § 30.* 4. VENDOR AND PURCHASER (§ 119*)-RESCISSION BY PURCHASER-LACHES. Land was purchased in August, 1907, under a contract for deferred payments, the vendor representing that the land was rich and productive, and that the crops then growing on the land were, and the annual crops for previous years had been, of specified kinds, quantities, and value. The purchaser took possession, harvested the 1907 crops, made the payment due in February, 1908, in July, 1908, entered into a modified and more advantageous contract for the purchase of the lands, planted, harvested, and marketed the 1908 crops, and Purchaser, Cent. Dig. 88 40 43; Dec. Dig. § [Ed. Note.-For other cases, see Vendor and 33.*] Appeal from District Court, Jefferson County; Lew L. Callaway, Judge. Action by Sebastian Ott against Ike E. O. Pace and others. From a judgment sustaining a general and special demurrer to the amended complaint, plaintiff appeals. firmed. Af Lewis A. Smith, for appellant. M. H. Parker and Ike E. O. Pace, for respondents. HOLLOWAY, J. This suit was brought to secure the cancellation of two certain contracts and the return of certain moneys paid under them. To the amended complaint a general and special demurrer was sustained, and plaintiff, electing to stand upon his pleading, suffered judgment to be entered against him, and has appealed to this court. From the amended complaint we gather these facts: In August, 1907, defendants Pace and Woods owned and were in possession of some 634 acres of land near Whitehall, Mont., together with certain water rights and water ditches, also a leasehold interest in 160 acres of state land, and owned and possessed certain personal property consisting of crops then on the land, farm machinery, and live stock; that on August 20, 1907, plaintiff and Pace and Woods entered into a contract for the sale of the real estate and personal property by Pace and Woods to Ott, for the sum of $19,500, payable $5,000 in cash, $4,500 in six months, $5,000 in 18 months, and 5,000 in 2 years, the deferred payments to be secured by the deposit of certain certificates representing shares of the capital stock of the Ritzville (Wash.) flouring mill; that the notes representing the deferred payments, the securities, and a warranty deed were to be deposited with the Whitehall State Bank as trustee for the parties; that the first payment was made, and plaintiff took possession For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |