Dennis v. Smith

This was an action to enforce a mechanic’s lien for material and machinery for the construction of a mill, furnished to the owner under one entire contract, partly written and partly oral. *496The principal question in the case is whether the commingling of lien-able and non-lienable items in the account filed destroys the lien. If the whole had been furnished for a round sum, so that it would be impossible to determine what part of the contract price is applicable to the lienable and what to the non-lienable items, then, as there could be no lien for the whole, there probably could be none for a part. Morrison v. Minot, 5 Allen, 403. The only price fixed by the contract in this case was on the engine, boiler, and trimmings, which are all lienable. As to the articles furnished under the oral part of the contract, (which includes those alleged to be non-lienable,) no price was fixed, each article being left to be charged for at what it was reasonably worth, and the value of each appears separately in the statement of account. Consequently there is no difficulty in separating the one class of items from the other, or in determining the amount due for those that are lienable. Under such circumstances, the including, in the statement of claim, non-lienable items will not defeat the lien. What would be the effect if it were done for a fraudulent purpose we need not now inquire. Phil. Mech. Liens, § 355, and cases cited.

The appellants further contend that the payment of $500, applied generally upon the whole account, destroys the lien. If the payment had been as large or larger than the entire amount of the items for which the plaintiffs were entitled to a lien, there would be some force in this point. It would present a ease similar to that of Driscoll v. Hill, 11 Allen, 154, in which it is said that for aught that appeared the money credited may have been sufficient to pay for all that was lienable. But in the case at bar the amount of the payment was much less. Hence there must still, in any view of the case, be some amount due for which the plaintiffs are entitled to a lien. This disposes of the only question which can be raised by demurrer to the complaint. Whether the payment should be applied wholly on the lienable items, or wholly, or as far as necessary, upon the non-lienable items, or pro■ rata on both, are questions which will arise, if at all, on the trial.

There is nothing in the point that the parties have converted the open account into an account stated. This does not change the nat*497ure of the claim, but, like the giving of a note, is a mere adjustment of the amount due. Milwain v. Sanford, 3 Minn. 92, (147.) It does not destroy the lien, neither will it stand in the way of the court’s eliminating non-lienable items in ease it should appear that such were included.

Appellants’ other assignments of error do not require special consideration. We think none of them are meritorious.

Order affirmed.