Appeal from the Second Judicial District Court, Washoe County; W. H. A. Pike, Judge.
L. A. Gibbons and Fred B. Hart, for appellant.
Cheney, Downer, Price & Hawkins, and Cole L. Harwood, for Respondent.
This is a suit to foreclose a mechanic's lien. From a judgment in favor of plaintiff and from an order denying a motion for a new trial, defendant appeals. On the 21st day of November, 1906, an agreement in writing was entered into between the Northwestern Construction Company, a corporation, and Frank Golden, since deceased, whereby the said construction company agreed to construct for the said Golden a fourth-story addition to that certain building in the city of Reno known as the Hotel Golden, and comprising what is known as the Nevada Block, and to construct a four-story annex to such building in accordance with certain plans and specifications furnished by Holesworth, Curtis & Co., the supervising architects of the building. The agreed price for such work was $57,099, to be paid for in seven installments. It was provided that the first installment of $7,500 should be paid when the north wing is four stories high and ready for ceiling joist. The second installment of $7,500 was to be paid when the brick work for the fourth-story addition and annex are completed. The contract further provided that the said Golden could furnish to the said construction company certain lumber to be used in the construction work, which was to be paid for by the construction company according to a certain schedule of prices set out in the contract. It was further provided that Golden could require alterations and additions during the progress of the building. Included in the contract was the installation of a passenger elevator, but it was also provided that Golden reserved the right, which he
subsequently exercised, to install the elevator himself, in which event the sum of $4,150 was to be deducted from the original contract price for construction.
The contract also contained the following provisions: The party of the first part agrees to be responsible for all damages that may happen to the building now known as the Hotel Golden, or Nevada Block, when the same shall be occasioned by the construction of the said addition or of the said annex. That in case of the failure of the party of the first part to have the said building fully completed and ready for occupancy the party of the second part, at the time herein specified, to wit, on the 15th day of March, A. D. 1907, the said party of the first part shall be held liable to the party of the second part in the penal sum of twenty-five (25) dollars per day for each and every day after the said 15th day of March, A. D. 1907, and the said sum of twenty-five (25) dollars per day is hereby fixed and agreed as full, fixed, and liquidated damages for the detention of the delivery of the said building, unless such delay shall be the result of unavoidable accidents or delays, or the acts of God.
The second payment mentioned in the contact came due on the 10th day of April, 1907. Upon notice to Golden by the construction company that such payment was due, Golden deposited in the Farmers' and Merchants' Bank the sum of $3,900.63, and presented to the contractor a bill for lumber furnished in the amount of $3,599.37 as a full settlement of the second payment. A dispute arose between Golden and the construction company relative to the sufficiency of this proposed settlement of the second installment to meet the terms of the contract. It was claimed by the construction company that the lumber account was to be adjusted at the time of the final payment, and also that it had not received the full amount of lumber mentioned in the bill. The construction company, through its agent and representative, Eugene Schuler, notified Golden that he had forfeited his contract.
On the 7th day of May, 1907, the construction company sent a letter to Golden reading as follows: We hereby
confirm the action of our Mr. E. Schuler, declaring your contract forfeited. You have defaulted payment on the same, and we may decide to cancel the same and demand a full settlement of you in the same at any time. We have notified all bondsmen that they are released and asked them to withdraw. We hereby notify you that we will not be responsible for any subcontractors' liens that may go on to the property.
On the 20th day of May, 1907, a letter was sent to Golden signed by the Northwestern Construction Company, written by E. Schuler, and in part reading as follows: In pursuance to letter from the company to you dated May 7, 1907, confirming my action declaring your contract forfeited owing to you defaulting payment on the same in this letter they also advise you they would not be responsible for subcontractors' liens, therefore herewith give you partial list with approximate amounts due the subcontractors on the Golden Hotel Building, and you will pay them as they become due and attested correct by us, thereby save the expense and attorney's fees for liens from them or either of them as they become due. We have notified them nothing more would be paid by us owing to can. of cont.
Then follows a list of names of subcontractors with amounts opposite, aggregating $56,804. The letter then continued: You are hereby notified to call at our office, * * * check up all matters and take care of them together with bal. due us; also look after insurance hereafter on the said building. Yours truly, Northwestern Construction Co. P. S.E. Schuler has subcontract of your building for $55,000.00
Thereafter, and on the 23d day of May, 1907, Golden posted on the building notices reading as follows: To whom it May Concern:
Notice is hereby given that the undersigned, Frank Golden, owner of these premises and building, will not be responsible for any debts, charges, contracts, or other agreements entered into by the Northwestern
Construction Company, with reference to any work, labor, materials, or supplies furnished for the alteration and construction of this building, unless first approved by me.
Notice is further given that the said Northwestern Construction Company has abandoned contract for the construction and alteration of this building, and the undersigned has declared their contract forfeited.
Dated at Reno, Nevada, this 23rd day of May, A. D. 1907.
Over the above-posted notices by Golden, E. Schuler posted other notices reading as follows:
______ having defaulted payment on his contract April 10, 1907, this building is being completed by the subcontractors, who will hold the building and real estate for the full amount of their claims and also the proprietors of these premises.
The building is in possession of the subcontractors, and trespassers are hereby notified to keep out.
Subcontractors, by E. Schuler.
Several of these notices appear to have been posted, varying somewhat in language, one reading as follows:
______ Having defaulted payment to the Northwestern Construction Co. April 10, 1907, this building is being completed by the subcontractors, who will hold this property and the owners for the full amount of their claims. See.'