CATLIN 'l1. DOUGLASS
(Circuit Oourt, D. Kan8aB. November 1887.)
MECHANICS' LIEN-ENFORCEMENT-FILING OF LIEN-TIME.
Under Code Kan. § 632. 'regulating tbe time witbin which a contractor may file his statement for a lien on a building, such statement, if filed before com· pletion of the building, is premature, and constitutes no lien. The abandonment of work upon a building is to be deemed a completion of the building, for the purpose of filing a mechanics' lien.
In Equity. On demurrer. This was a suit by Levi Catlin against Yates Douglass, the Chicago Lumber Company, and tbe Merrimac River Savings Bank,to foreclose a mortgage on certain real estate owned by tbe defendant Douglass. The petition alleged that the Chicago Lumber Company and the Merrimac River Savings' Bank had some liens upon, or claims to, the mortgaged property, and required them to set out the same. The bank contested the claim of the lumber company, and the cause was beard upon a deDiurrer filed by the latter to the matter set up by the bank. W. W. Guthrie, for defendant Chicago Lumber Company. Jones & Mason, for defendant Merrimac River Savings Bank·
. FOSTER, J. The Chicago Lumber Company, under an alleged. con· tract with the owners of the property, Douglass and Bixby, furnished them a large amount of lumber and material, to be used in the erection ofa flouring-mill and residence on tbe 40 acres of land set out in its -cross-bill. The material was delivered between the seventh day of No· vember, .1882, and the thirteenth day of December, 1883. On January 1,1884, the Chicago Lumber Company took a note from Douglass, due the first day of July following, for the balance due, to-wit, The note was not paid, and on or about the first day of July, 1884, the lumber company filed its claim for lien upon the property with the clerk of the district court of Mitchell county. In its statement for a lien it . .avers that the flouring-mill and dwelling-house were not yet completed, but did not aver that the work had been suspended or abandoned. The 'Chicago Lumber Company, by its cross-bill in this suit, (filed April 2, 1880,) for the first time took steps to .assert its lien. It charges in its bill that the work is not yet completed, and that Douglass and Bixby have abandoned the undertaking, but do not aver when they abandoned the undertaking or stopped the work. The Merrimac River Savings Bank, which has a mortgage lien on the property, contests the claim of the Chicago Lumber Company, and asserts thatits claim of a lien for material furnished was prematurely filed, inasmuch as it was filed before, and not after, the completion of the buildings; and further, if it had a lien, it was not asserted by suit within a year, and is barred by the statute.' To these two allegations the Chicago Lumber Corupany presents a and its oounsel takes the broad ground that under
570 section 632 of the Code the statement for a lien may be filed at any timeafter furnishing the material, ,the expiration of four months from the completion of the building. In reason and justice, I can see no objection to this construction of that section, were it not for the fact that such a construction would necessarily carry with it an optional right to to bring suit, ulldersection 633. to assert bislien, at any time after furnishing the material and the expiration (jf a yeRr from the completion of the building. 'The object of the law is to permit all parfurnish material Qrperformlabor under a contract with theties owner,and who file their liens "'lthinfour months after the completion of the building, to stand on an equal footing.. Section 637. And hence it would only work confusion, and multiply litigation, without accomplishirlg any definite result,tQ hold that a claimant may file a lien, and WQl'k is completed, and while it is in; bring: suit to 'enforce it, before If section 632 is to he construed as entitling a claimant to filehisstatementat any time after the material is furnished, or the labor performed, I see no eSCape from lwldingthat, under section 633, he may his suit any time after filing his statement; for the words of the twostlCtions, as to tim&jlaresUbstantially the same. But this question as to when the stateinent'iora:lien may be properly filed has, in the cases of ,subcontractors, received two or three adjudications by the supreme court of this state. ,It 'mUst be borne in mind. that the words of section 631, fixing the time when a subcontractor can file his statement"areidenti<Jal.with.those oisection 632, fixing the time for the contractor; excepting the one gives:60 days after the completion of the buildas the supremecou,rt has in two ing, and the. other cases clearly denied the right of a S1,1bconll'actor to file his statement until after the work was 'completed!. r, no way to avoi(iapplying the same meaning to the same words in,cthe section. Davia v. Butlard. 32 'Kan. 234,4 Pac. ,Rep.; 7Qj,Searon v. Chamberlain, 32 Kan. 239, 1 Pac. Rep. 136. 4 Pac. Rep. 89; OrawfO'Fd v. Black1rw.n:. 30 Kan. Perhaps, in the present state Qf the pleadings, nothing more need be said but to overrule the demurrerj;·but as a small amendment to the bill or answer may present the question ns to the rights of the parties in case of the abandonment of the work,and as thatquestiol). has been referred to by counsel, it may as well be disposed of now· It seems to me it would be inequitable and unreasonable, and contrary to tbespirit of tbe law, to hold ,that parties are absolutely baued of all rights to the lien law. where the 'work is permanently!stopped or abandoned without fault of such· parties. Such a construction would place material-men and laborers at the, mercy of the dishonesty , fickleness, or misfortunes of the owner oroontractor. I am of the OpiniOll that, incase of the abandonment of thetenterprise, the case would come fairly within the meaning oitha'term completion; so far aaapplicable to the rights of the parties not in fault, :to file and assel't tbeir. liens. This seems to have been the view·of,the COUl't in Davia Vi Bullard, tmpra. It is. apparent that parties intending to assert liens rather than rely upon the persol1ll1 credit of the debtor, must be vigilautto ascertain when the work is completed
ARNOLD !1. CHESEBROUGH.
or abandoned, and not to be too early or too late in filing their statements, It is also apparent that there IIlaya.rise perplexing questions as to when a work is completed, or abandoned, and, in determining such questions) ithe court should not take. a technical and narrow view, but should save to parties entitled to liens any rights they may justly hl;Lve, under afair and equitable, construction of the facts and the law applicable thereto. The demurrer must be overruled.
V. CHESEBROUGH. 1
((]irc'Uit Oourl. B. D. NetD York.
December 18, 1887.)
When,it does not. appear that plaintilf's situation has changed for.the worse in consequence of defendan.t's delay in interposing .11. particular defense,-unless in proceeding to make proof of his case, whiCh he might not have done had the defense been interposed originally,-a motion to amend the answer will be granted, but on payment of taxable costs to the time of the amendment.
In Equity. On motion to amend answer. Henry A. Rawcliffe, (John H. V. Arnold, of counsel,) for complainants. Blisa &: Schley, (Walter S. Logan, of counsel,) for defendant. LACoMBE,J. The practice formerly prevailing in this state of examining into the meritoriousness or morality Of defenses sought to be interposed by way of amendment to"the answer is no longer valid. GUchri.8t v. Gilchri.8t, 44 How. Pro 317;8heldon V. Adams, 41 Barb. 54; Pike v. Bingham. 11 Reporter 750. When law or equity recognizes a defense as proper to be interposed to the plaintiffs' claim, it should· be treated upon a motion of this kind as entitled to the same consideration as any other defense. There is nothing upon the papers to show that plaintiffs' situation has changed for· the worse in consequence of defendant's delay in interRosing this defense. nor that, by reason of the lapse of time, she has lost the opportunity of presenting evidence to defeat the proposed defense which she have secured had it been interposed when issue was joined. Nor does it appear that the final disposition of the case will be in any way delayed by the interposition of the defense at this stage of the trial. The plaintiff, however, has proceeded at great length to make proof of her case, which possibly she might not have done had this defense been interposed originally. The defendant's motion is therefore granted, upon payment of taxable cost to date, including the fees of ex.aminers and stenographers, if any. .
J:Beport.ed by J!;dwara G. Benedict., Esq., of t.he New York bar.