Newt Olson Lumber Co. v. Cue

PEEK, J. The present controversy arose out of an action instituted by plaintiff Olson Lumber Company against the defendants Cue and Mr. and Mrs. Whitehurst to foreclose a materialmen’s lien, and a second action filed by plaintiff Gardner against the same defendants to foreclose a mechanic’s lien. The Whitehursts answered and cross-complained against The Fidelity and Casualty Company on its bond. Upon stipulation the two eases were consolidated for trial and following a judgment favorable to plaintiffs, the bonding company and the Whitehursts separately appeal to this court.

The record shows that defendant Cue, a licensed building contractor, undertook to make certain major alterations on the premises occupied by the Whitehursts. Cue also contracted with the lumber company for certain building materials to be used in said alterations, and said materials were so furnished by the company. He made a similar agreement with plaintiff Gardner, who agreed to and did furnish certain materials and the plumbing fixtures necessary on the Whitehurst premises.

Plaintiffs’ complaint alleged, and the defendants’ answers admitted, that a notice of completion was filed on October 11, 1948. It was further alleged and also admitted that the lumber company first furnished materials between February 21 and September 13, 1948, and that Gardner furnished materials and labor between March 4 and September 6, 1948. The Whitehursts by their cross-complaint alleged that The Fidelity and Casualty Company was jointly liable under its surety bond for any loss they might sustain by reason of the filing of such liens, and prayed that said company be brought in as a party defendant, and the court so ordered.

At the trial it was established by uncontradicted testimony that all work on the building was completed by September 18, 1948. It was also established by uncontradicted testimony that the Whitehursts were in possession of the premises during the latter part of August 1948. There was further uncontradicted evidence that plaintiffs’ notices of claims of lien were mailed on November 9 and recorded on November 12, 1948. At the conclusion of the hearing the court, among other things, found that on November 9, 1948, plaintiffs filed their claims of lien; that such liens were recorded on November 12, 1948, and that each of the plaintiffs had a lien on the premises. [479]Upon motion for a new trial the judgment, which was entered in favor of plaintiffs, was reduced to the amount of the bond, to wit, $3,885.33, and it is from that judgment that the appeal is taken.