North Dakota Lumber Co. v. Bulger

On petition for rehearing.

Carmody, J.

Plaintiff in this case filed a petition for a rehearing, in which- it contends that this court has failed to consider or decide the vital point at issue in this case, in this, that the court has wholly failed to in any way define the terms “full and actual knowledge, approval, and consent,” as applied to the facts in this case, and has wholly failed to take cognizance of the contention of plaintiff and appellant upon the oral argument of this case, wherein plaintiff and appellant contended that, the defendant churches having obtained the material from plaintiff and appellant through their contractor under the contract between said plaintiff and said contractor with the full and actual knowledge, approval, and consent of said defendant churches, the said churches thereby became parties to the contract between plaintiff and the defendant Bulger, thereby establishing a direct contractual relationship between plaintiff and the defendant churches, and that the plaintiff thereupon became no longer or in fact never a subcontractor, but instead contracting directly with the defendant churches, and furnished material, not “for a contractor or subcontractor,” but for the owners.

That the statute does not require the materialman, when contracting directly with the owners, to give the said owner or owners any notice by registered mail, and that, under the facts as stipulated *520in this case, there being a direct contractual relationship between plaintiff and the defendant churches, owners of the property, the statute did not require the plaintiff to give the owners any notice by registered mail.

Plaintiff strenuously contends that full and actual knowledge, approval, and consent imports every presumption of direct contractual relationship, between plaintiff and the owners. It presumes, for instance, that the owners went personally and picked out every parcel and portion of that material from the lumber yard; that they personally passed upon each and every article as it was obtained from the plaintiff; that they knew, as each item was purchased, just what it cost, knew whether or not the plaintiff had been paid, knew it was going into their building, and not only knew these things, but took an active participation in the making of the contract for the materials and in the direction of the delivery and disposal of the materials as parties to the contract, together with Bulger, the builder, on the one hand, and the plaintiff, as materialman, on the other.

• We agree with the plaintiff that the statute does not require the materialman, when contracting directly with the owner, to give the said owner or owners any notice by registered mail; but we do not agree with it that the facts as stipulated in this case and which are, as far as material, as follows: “That the defendant Bulger was and is the contractor who, under contract, with the said churches, constructed the church building upon the real estate involved in-this action for said churches, and that the plaintiff, with the full and actual knowledge and consent thereto of the defendants, * * * sold and delivered lumber and building materials to the said G. Bulger for use in the construction of said church building” — constitute a direct contractual relationship between the plaintiff and the owners. The fact that the owners knew and consented to the plaintiff furnishing the defendant Bulger material to be used in the construction of the church does not release the plaintiff from notifying the defendant churches by registered letter, previous to the completion of said contract, that it furnished such materials, machinery, or fixtures. The statute makes no exception. It requires the materialman in every instance to give the owner the required notice. As stated in the original opinion, the notice is a condition precedent to the right of the materialman to acquire a lien. The purpose of the notice is to enable the owner *521of the property to take such steps for his own protection as he may deem necessary, so as not to be compelled to pay twice for the same improvement. There, is nothing in the stipulation to show that the defendant churches knew that the material was not fully paid for. The statute requiring notice is not only for the benefit of the owner, but for the laborer and materialman as well. It is no hardship to require the materialman to give the notice required by the Code.

(125 N. W. 833.)

In Rosholt et al. v. Corlett et al., 106 Wis. 474, 82 N. W. 305, which was an action for the foreclosure of three alleged mechanics’ liens in favor of subcontractors and materialmen against Corlett, the owner of the building, Lizzie Corlett, his wife, and the principal contractors for the building, the complaints charged that the materials were sold and the work performed upon the joint request of the owner and the contractors, and did not allege the giving of the notice required by the statute. Upon the trial it appeared without dispute that the materials were sold to, and the work was performed for, the principal contractors alone, and that neither Corlett nor his wife ordered the materials or made any contract with either of the plaintiffs. The court said: “The lien is a creature of the statute, and every step prescribed by the statute must be shown to have been substantially followed, or it does not exist.”

In the case at bar, there is nothing in the evidence or the stipulation to show that the plaintiff made any contract with the defendant churches. The part of the stipulation that the plaintiff, with the full and actual knowledge and consent thereto of the defendants, said Norwegian-Danish Methodist Episcopal Church of McVille, N. D., and the Thos. Myers, D. D., Memorial Methodist Episcopal Church, sold and delivered lumber and building material to the said G. Bulger for use in the construction of said church building, falls far short of showing that the plaintiff sold the material to the defendant churches. In fact, it shows that the materials were sold to the defendant Bulger. The actual knowledge and consent of the defendants that plaintiff sell said material to defendant Bulger does not constitute any contract between plaintiff and defendant churches.

The petition for rehearing is denied.

All concur.