C. Ganahl Lumber Company v. Weinsveig

JAMES, J.

Seven actions brought in the superior court to enforce liens alleged to be then existing in favor of the plaintiffs against the property of defendant Weinsveig were consolidated and trial was had in the consolidated action. The trial court determined that several of the lien claimants were entitled to have liens enforced against the property of said defendant, and a large sum of money which was deposited in court by defendant Weinsveig, and which represented the balance due to Reeve, the contractor, was ordered distributed among the successful plaintiffs. The appellants here, three in number, were not allowed to participate in the distribution of this fund, and the court determined that they were not entitled to enforce liens, but that they were entitled to judgment against the contractor only,

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for the amounts of their several claims. The appeal is from the judgment. So much of the evidence as was thought sufficient to illustrate the errors assigned by appellants is presented in the form of a bill of exceptions.

By the findings of the court it is shown that a contract was entered into between defendant Reeve, as contractor, and defendant Weinsveig, as owner, for the erection of a three-story frame building on the property owned by said Weinsveig; that this contract and the specifications for the doing of the work were duly recorded in the office of the county recorder, and the contractor proceeded with the erection of the building until December 4, 1907, when he gave notice to the owner that he would not proceed further with his contract and abandoned the same; that the building was not then completed, and that after the fourth day of December, 1907, said Reeve, the contractor, did no work nor caused any to be done upon the building, and that he furnished no further material for use upon the same. The court further finds that on the tenth day of January, 1908, the owner filed in the office of the county recorder a notice in writing, stating that work under the contract had ceased on the fourth day of December, 1907, and that the contractor had abandoned his contract. There is a further finding that, on December 10, 1907, defendant Weinsveig, the owner, took 'possession of the building and occupied the same, and that he ever since has occupied and used the building. It is found that the allegations of the complaints of the several appellants with respect to the amounts of their claims are correct, and it is found further that notices of lien were filed for record on behalf of the appellants Ganahl Lumber Company and FriekFleming Hardware Company on the second day of March, 1908, and that a notice of lien on the part of appellant O. F. Pealer was filed on the twentieth day of March, 1908. These notices of lien were in due and regular form. The only findings made by the trial court which are attacked by appellants are those numbered 7, 8, 10, 10% and 12, and it is contended that these findings are not supported by the evidence. No finding was made by the trial court showing when the building was completed. An issue is made -by the pleadings as between the appellants Ganahl Lumber Com