Hogan Lumber Co. v. Boyle

[478]

VICTOR E. SHAW, J.,

pro tem.

This is an appeal by defendants other than Leo L. Nichols from a judgment and decree in favor of plaintiff foreclosing a lien upon real property for a sum found due for material furnished by plaintiff to defendant Nichols for use by him in the construction of a dwelling-house upon real estate of which he was the owner.

It was conceded at the trial of the case by all parties that the defendant Leo L. Nichols and his wife were at all times up to November 8, 1915, the owners of the lot of land upon which the building was erected; that on the last-mentioned date they sold and conveyed the property to the defendants, Hugh A. and Ida M. Boyle, who ever since have been the owners thereof; that between February 18 and July 6, 1915, plaintiff furnished to the defendant Nichols building material of the value sued for which was actually used in the construction of the building; that said sum had not been paid; and that on December 22, 1915, plaintiff filed for record Ms claim of lien.

Claiming the same to be contrary to the evidence, appellants attack the finding that the building was completed subsequent to September 24, 1915[ and that the lien was filed within ninety days after completion of the house. They insist that the evidence shows that the building was completed on August 20th, hence, when the lien was filed on December 22d, the ninety days within which plaintiff was entitled to file the same had expired. This contention must be sustained.

It appears from the evidence that defendant Nichols was a “speculative house builder,” having for years been engaged in constructing houses for sale; that it was his custom in building houses for such purpose to omit therefrom the installation of electric fixtures, leaving the same to be selected by the purchaser; that “he never put the fixtures in a building until it was occupied or sold,” for the reason that “they deteriorate, go to pieces, and are stolen.” 'While admitting that he had no independent knowledge as to

when the building

toas

completed,

Nichols testified without contradiction that, other than installing the furnace and putting in the fixtures, nothing was done on the house after the hardwood contractor completed the hardwood floors, which date, as conclusively shown, was on August 20th. On November 8tli Nichols sold the property to the defendants Boyle, who se