DICKASON GOODMAN LBR. CO. v. FORESMAN

DICKASON GOODMAN LBR. CO. v. FORESMAN
1926 OK 756
251 P. 70
120 Okla. 168
Case Number: 16868
Decided: 09/28/1926
Supreme Court of Oklahoma

DICKASON GOODMAN LBR. CO.
v.
FORESMAN et al.

Syllabus

¶0 1. Appeal and Error--Assignments of Error--Overruling Motion for New Trial.
Under chapter 34, S. L. 1923, it is unnecessary to allege as error, in the petition in error, or assign on appeal the overruling of the motion for a new trial in order to have the court pass on the errors of law alleged to have occurred at the trial.
2. Mortgages--Priority as to Mechanic's Liens--Distinct Units of Building.
Where a building consists of two or more distinct units or parts, such as basement, upper stories, and added rooms, each unit is considered as a distinct building in determining the commencement of the building or any of its distinct units and the priorities of the mortgage and mechanic's liens where the evidence shows that the units of the house were constructed at different times and under different contracts and different plans.

Jno. F. Kerrigan, for plaintiff in error.
Abbott & Rodolph, for defendants in error.

THREADGILL, C.

¶1 This appeal involves the priority of liens between a lumber company that furnished material for building a house on lot 20 in block 9, Forest Park addition to city of Tulsa, and a mortgage on the same. The undisputed facts are substantially as follows: In 1918, the defendants Joseph Foresman and his wife, Georgia E. Foresman, built themselves a dwelling place on the above described lot by excavating a basement about 24 by 36 feet, and surrounded it with a basement wall extending about 3 feet above the ground, dividing it into two rooms, lathed and plastered, flooring it with boards, and covering it with rubberoid. In 1922, two more rooms were divided off by partitions, making this basement house a four-room house, in which the Foresmans lived till March, 1923. Early in the year 1923, they employed an architect to prepare plans and specifications for the construction of a bungalow on this basement foundation, and in March, 1928, they negotiated a loan with one of the defendants in error, the Tulsa Building & Loan Association, for the sum of $ 4,500 with which to build the said bungalow. For the purposes of this loan, the said lot with said basement was appraised at $ 4,000, and the value the property would have after completion at $ 9,000. A mortgage on this property was executed to secure the loan, and on March 29, 1923, the mortgage was placed of record. Thereupon said defendants made a contract to build said bungalow, and the plaintiff, Dickason Goodman Lumber Company, furnished the materials for the building, the first item being furnished April 2, 1923, and the last item July 1, 1923, all of which amounted to $ 1,575, of which sum $ 1,275 went into the bungalow and about $ 300 into a garage on the premises, and no part of which was paid, and on August 13, 1923, said defendants gave their note for the same. Thereafter, said plaintiff filed its statement for a mechanic's lien, and within due time commenced its action of foreclosure. Prior to the commencement of this action, George W. Warner had brought suit against the Foresmans to foreclose a mechanic's lien claimed by him against said property, and made plaintiff, in the first action, a defendant, and named other claimants as defendants, one of which was the Tulsa Building & Loan Association, and asking for the determination of lien priorities. For the purposes of the trial the two actions were consolidated with plaintiff in error as plaintiff and all the other parties as defendants. The claims of all the parties involved mechanic's liens for work and labor performed or materials furnished in building the bungalow, except the claim of the Tulsa Building & Loan Association. After issues joined, the cause was tried to the court April 24, 1925, and the court made findings of fact and conclusions of law, adjudicating the claims and priorities of all the parties, but as none of them have appealed except the lumber company, and as it does not complain except as to the priority given the claim or mortgage of the loan company, it will be unnecessary for us to consider the rights of any of the parties, except the lumber company and the loan company. As to these parties, the court found as follows:

"That in the fall of the year 1918, the defendant Joseph Foresman commenced the construction of a one-story dwelling house and basement on lot 20, in block 2, in Forest Park addition to the city of Tulsa, Okla., and excavated the basement, and built the walls thereof, and occupied two rooms of the same as his residence. * * * That in March, 1923, the defendant Foresman made application for a loan to the Tulsa Building & Loan Association, and obtained a loan for the sum of $ 4,500, and executed a mortgage on said premises to secure said loan. * * * That Dickason Goodman Lumber Company furnished material for the dwelling house on said premises, the first item of which was furnished on April 2, 1923, the last item of which was furnished about the 1st of July, 1923, all of which material amounted to $ 1,575, of which sum $ 1,275 went into the dwelling house, and about $ 300 went into the garage upon the premises, no part of which was paid, and for all of which the defendant Foresman executed his note in the sum of $ 1,575 on August 13, 1923, in favor of said lumber company. * * * That from the commencement of the dwelling in 1918 until about April 1, 1923, there was no contract made as to the building of said dwelling, or the completion of same, and no continuous contract or definite contract of any kind made for the building of said premises until about April 1, 1923, and after the mortgage was duly executed and recorded by said Foresman to said Building and Loan Association, and no material furnished by said lumber company until after said mortgage was executed and filed for record. * * *"

And upon the foregoing findings of fact the court found as a matter of law:

"That as between the Tulsa Building & Loan Association and the Dickason Goodman Lumber Company, the mortgage of said association is superior to the lien of said lumber company. * * *"

¶2 To reverse this finding and conclusion of the court, the plaintiff, Dickason Goodman Lumber Company, has appealed and it appears that the only question for determination is the priority of the mechanic's lien and the mortgage lien above referred to.

¶3 Plaintiff states two assignments of error as follows:

"1. The court erred in decreeing the mortgage superior to plaintiff's lien in the sum of $ 1,275, the value of material that went into the bungalow, and in overruling plaintiffs's motion for priority on the findings.

"2. The court erred in overruling plaintiff's motion for a new trial."

¶4 This second specification is unnecessary and serves no purpose in the petition in error or brief and argument of plaintiff in error. Chapter 34, Session Laws 1923, provides as follows:

"Section 1. That in no case whatsoever, hereafter instituted, or now pending and not finally determined in the Supreme Court of this state, shall it be necessary for the plaintiff in error, or appellant, in the petition in error on appeal, to allege, in terms, that the trial court erred in refusing to grant such plaintiff in error, or appellant, a new trial, and in overruling the same, in order that the court may consider and pass on the errors of law alleged to have occurred at the trial; but in all such cases, when proper and necessary exceptions are saved in the trial court, where it appears from the allegations of the petition in error that such plaintiff in error, or appellant, seeks to have the Supreme Court review and determine alleged errors of law occurring at the trial, it shall be the duty of the Supreme Court to treat and consider all such errors, necessary to a decision, including error in overruling the motion for a new trial, as sufficiently raised and presented, to all intents and purposes as though the ruling of the motion for a new trial had been specifically assigned. Approved March 5, 1923."

¶5 This disposes of the second specification of error and leaves for our consideration only the first.

2. Plaintiff contends that the lumber company's lien was superior to the mortgage lien. This contention is based upon the theory that the record shows a continuity of purpose on the part of the Foresmans from the commencement of the basement, in 1918, to the completion of the bungalow, and it says this purpose was known to the mortgagee when it took its mortgage to aid in effecting this purpose.