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eBook details

• Title: Eskestrand v. Wunder
• Author : Supreme Court of Montana
• Release Date : January 30, 1933
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 61 KB

Description

Mechanics Liens ? Foreclosure ? Overstatement of Amount Due in Claim Filed by Lienor ? When Insufficient to Invalidate Lien ? Building Contracts ? Cost of Extras ? How Value Fixed ? Loss of Sale of Property Through Fault of Plaintiff ? When Offset not Allowable ? Allowance of Interest ? Date from Which Allowable Under Facts. Mechanics Liens ? Filing Account ? Bare Overstatement of Amount Due Insufficient to Invalidate Lien, in Absence of Fraud. 1. Under section 8340, Revised Codes 1921, providing that one claiming a mechanics lien must file a just and true account of the amount due him, but adding that "any error or mistake in - Page 58 the account" does not affect the lien, held, that in the absence of fraud alleged and proved, the bare overstatement of the amount due lienor in the lien filed (the total amount claimed having been $2,111, whereas on the trial to foreclose the lien plaintiff conceded that but $1,444 was due) did not, in view of the facts, invalidate the lien. Fraud Vitiates Everything ? Must be Pleaded and Proved ? May not be Presumed. 2. Fraud cuts down everything, but to be available as a defense it must be alleged and proven; it will not be presumed. Mechanics Liens ? Finding That Overstatement in Account Due to Mistake Held not Conclusion ? Implied Findings. 3. The trial courts finding in an action for the foreclosure of a mechanics lien that the excessive amount stated in the lien filed was due to mistake and was inserted without any intent to injure or defraud defendant, held one of fact, and not a conclusion, and that any further findings necessary to support the judgment in favor of plaintiff must be implied under the doctrine of implied findings. Same ? Building Contract ? Cost of Extras ? How Reasonable Value Fixed. 4. Where it was agreed between a building contractor and the party having a house remodeled that any extras were to be controlled by the cost of labor and material furnished for the original work, such cost became the reasonable value of the extras, in an action to foreclose a mechanics lien on the structure. Same ? Loss of Sale of Property Through Overstatement of Amount Due ? When Defendant not Entitled to Offset. 5. Defendant in a suit to foreclose a mechanics lien was not entitled to an offset based on the alleged loss of a sale of the property because of plaintiff lienors excessive charge over the estimated cost of repairs, where the answer was a general denial and there was no evidence as to the damages claimed to have been suffered on that account. Same ? Interest Allowable from Date of Decision Where Court Action Required to Fix Correct Amount Due, not from Date of Completion of Work. 6. Where a mechanics lien claimant considerably overstated the amount of his claim in the lien filed, so that it required the judgment of the court in an action to foreclose the lien to decide the correct amount due, interest ? a creature of statute ? was allowable only from the date of the decision, and the court in allowing it from the date of the completion of the work committed error.

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