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Gaston v. Avansino

October 1915

J. E. GASTON, RESPONDENT, V. MARY AVANSINO, AS ADMINISTRATRIX OF THE ESTATE OF LOUIS AVANSINO, DECEASED, MARY AVANSINO, LOUIS AVANSINO, AND LENA AVANSINO, APPELLANTS.


Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.

Mack & Green, for Appellant.

Dixon & Miller, for Respondent.

By the Court, McCarran, J.:

This was an action in foreclosure of a mechanic's lien. In the court below judgment was rendered in favor of the lienholder, respondent herein. From the judgment and from an order denying a motion for a new trial, appeal is taken to this court. The labor was performed and the material furnished by respondent at the instance and request of the lessee of the premises of Louis Avansino, deceased. It is admitted that the work was done and the material furnished in bringing about certain alterations and changes in the premises, and was within the knowledge and with the consent of Louis Avansino. Louis Avansino having died since the judgment was rendered in the lower court, Mary Avansino, administratrix of the estate of Louis Avansino, was substituted as party defendant and appellant herein.

1, 2. It is the contention of appellant that the court erred in finding the fact that the defendant, appellant herein, did not give notice by posting in writing on the premises in some conspicuous place, stating that he, the

[39 Nev. 128, Page 131]

defendant, would not be responsible for any material furnished or labor done in the alteration and repair of the building.

Section 2221 of the Revised Laws, 1912, provides:

“Every building or other improvement mentioned in section 1 of this act, constructed upon any lands with the knowledge of the owner or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this chapter, unless such owner or person having or claiming an interest therein shall, within three days after he shall have obtained knowledge of the construction, alteration or repair, or the intended construction, alteration or repair, give notice that he will not be responsible for the same, by posting a notice in writing to that effect in some conspicuous place upon said land, or upon the building or other improvement situate thereon.”

It was the contention of appellant in the court below that due and sufficient notice was given, by posting in a conspicuous place in the building a certain notice testified to by Louis Avansino, Jr. Louis Avansino, Jr., testified that about the 10th or 11th day of November, 1912, he wrote out a notice, signed it with his father's name, and posted the same in a conspicuous place in the building.

The testimony of the witness Kirby Unsworth is to the effect that on one occasion he saw the witness Louis Avansino, Jr., with a paper in his hand; that on the paper was what he would term a rough notice in handwriting; that he saw Louis Avansino, Jr., go into Kane's Cafe, the premises in question, carrying this paper. The witness Unsworth, in attempting to fix the time at which his attention was drawn to the notice in the hand of Louis Avansino, Jr., said:

“Q. Can you recall to mind whether or not you accompanied the son from any place to that building for any purpose some time back? A. Last fall, during the noon

[39 Nev. 128, Page 132]

hour, I met one of the boys, Louis, near Conant's grocery store as I was going out of Conant's and accompanied him down as far as Kane's Cafe.”

The trial of this case took place in June, 1914; and, if the witness's testimony in this respect was correct, the time at which he saw the notice in the hands of Avansino was nearly a year subsequent to the commencement of the work.

The witness Louis Avansino, defendant in the court below, as well as the witness Maggilo, testified to having seen the notice posted on a swinging door, a conspicuous place in the premises.

It is the contention of appellant that this testimony was not contradicted, except by witnesses who testified that they did not see the notice; in other words, they contend that no positive testimony was given denying the notice. We think the view of appellant in this respect is untenable, inasmuch as the record discloses the following testimony elicited from the respondent, Gaston, a witness in his own behalf:

“Q. Now, Mr. Gaston, at the time you entered into this oral contract with Kane, Incorporated, for alteration repairs to which you have testified, was there any notice posted upon those premises anywhere to the effect that Mr. Avansino, the owner of the building, would not be responsible for work done thereon? A. No, sir; there was not.

“Q. Was there any such notice posted upon those premises at the time you commenced work on the 11th of November, 1912? A. No, sir.

“Q. Was there any such notice posted there at any time during the month of November, 1912? A. No, sir.

“Q. Was there any such notice posted upon those premises during the month of December, 1912? A. No, sir.

“Q. Was there any such notice posted upon those premises at any time during the month of January, 1913? A. No, sir.

“Q. Was there any such notice posted upon those premises anywhere during the month of February, 1913? A. No, sir.

[39 Nev. 128, Page 133]

“Q. Was there any such notice posted anywhere upon those premises during the month of March, 1913? A. No, sir.”

“Q. Was there any such notice posted upon those premises anywhere during the month of April, 1913? A. No, sir.

The witness McDermott testified to having worked in the building as a plumber during the month of March, 1913; that he made some search ...


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