This appeal involves only one proposition, viz.: When a materialman signs a lien waiver for material furnished and thereafter furnishes additional material on the same job, does the priority date for the subsequent material relate back to the date of first delivery?
In order to get paid, the laborer or materialman is compelled to sign a lien waiver which states that he "waives, releases, and discharges any lien or right to lien the undersigned has or may hereafter acquire against said real property."
Even the respondents do not contend that the waiver means what it says. The law is clear on that point.1 The respondents in *Page 1381 this case are willing to allow a lien for subsequent materials furnished, but claims that the furnishing of additional material constitutes an entirely new and different contract; and that any new lien has a priority date as of the day of first delivery of the new material. That holding is correct only when the furnishing of materials is so far separated in time that it is clear that there was no intention to relate the deliveries to any one contract to furnish them. The problem was presented to this Court in the case of Fields v. Daisy Gold Mining Co.,2 wherein we stated:
The questions as to whether the material furnished to the mine was furnished under separate contracts, and as to whether it was furnished under a contract creating a continuous running account, were questions of fact, and were passed upon by the trial court adversely to the contention of the appellants, and we are not disposed upon this record to assume the right to question the correctness of the decision rendered. In general, we consider the proper rule to be that, when all the items in the account relate to one continuous transaction between the same parties, although the goods were delivered on separate orders, and at different dates, within short intervals of each other, and the dealings of the parties indicate an expectation to continue such business relations, the transactions constitute a continuous running account, regardless of intervening irregular monthly balances in the account, which dates from the date of the last item delivered, and relates back to the time of the first delivery of material under that course of dealing or contract shown. This presumption may be overcome and rebutted by the nature and course of dealing by the parties or by facts shown. If the materials were furnished for separate and distinct purposes, under distinct contracts or orders requiring cash payment under circumstances tending to re-but dealings of a continuous nature, then there would be no presumption of a continuous account, and, in the absence of an express contract, a right for a lien, if any, would date from the time of the commencement to furnish materials for the different separate contracts on each separate order. Upon this subject it is said in 2 Jones, Liens, section 1435, as follows: `If a materialman begins to furnish materials for the erection or repair of a building without any specific agreement as to the amount to be furnished, but there is a reasonable expectation that further material will be required of him, and he is afterwards called upon from time to time to furnish the same, he is generally entitled to a lien as under an entire contract. In determining a particular case the character of the account, the time within which the work was done or the materials furnished, and the purpose in doing the work or furnishing the materials afford a proper ground for the presumption either that there was or was not an understanding from the commencement that the work should be done or the materials should be furnished whenever required. If the work was done or the materials furnished for separate and distinct purposes, or under distinct contracts or orders, though in executing one and the same contract with the owner, there is no presumption of a continuous account, and the right of lien must date from the time of doing the different jobs of work or furnishing the different parcels of materials. But if there was a continuous dealing and running account, and the work was done and the materials furnished at short intervals and were appropriate to the condition and progress of the building, a presumption arises that it was understood from the beginning that the claimants were to do the work or furnish the materials for the construction of the building as the same should be required; and in such case the last item of the account is the date from which the limitation of the time of filing of the lien is to be taken.' In section 1436 it is stated that: `Where it is to be inferred from the evidence that all the articles furnished by a contractor for the construction or repair of a house or other improvement were *Page 1382 furnished under one contract, it is immaterial that the furnishing of the articles may have extended over a long period, or that several months may have elapsed between two items of the account. Where it is specially agreed or impliedly understood between the parties that the account is to be kept open and continued as one and the same continuous transaction and course of dealing, the account will be considered as one continuous account and one demand.' . . . Part payment and settlement do not necessarily defeat the running nature of an account upon which a lien is filed. . .3 [Emphasis added.]
The instant case was settled by means of a summary judgment, and was not based upon any determination of whether each delivery was a separate contract, or, indeed, the same continuous transaction and course of conduct. On summary judgment, the court would not be able to say whether the deliveries of materials for which lien waivers were given were contracts separate and apart from those deliveries furnished after the liens of the respondents attached to the property or a course of conduct. The intention of the parties would have a bearing on that matter.
We reverse the summary judgment and remand the case for a determination of the priorities of the liens pursuant to the law as set out in the case of Fields v. Daisy Gold Mining Co.,supra. It should also be noted that this case is still pending and is not a final judgment. Hence, this appeal is premature although the point was not raised on appeal.
WILKINS and MAUGHAN, JJ., concur.