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Morgan v. The O'Malley Lumber Co.

Supreme Court of Arizona

January 19, 1932

P. J. MORGAN, Appellant,
v.
THE O'MALLEY LUMBER COMPANY, a Corporation, and ARIZONA SAND & ROCK COMPANY, a Corporation, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Reversed and remanded, with directions.

Messrs. Alexander, Silverthorne & Van Spanckeren, for Appellant.

Messrs. Armstrong, Kramer, Morrison & Roche, for Appellees.

OPINION

[39 Ariz. 401] ROSS, J.

This is an appeal by the owner, P. J. Morgan, from two judgments establishing and foreclosing two materialmen's liens, one in favor of the O'Malley Lumber Company and the other in favor of Arizona Sand & Rock Company, on his real property. The two cases were consolidated for trial. They involve, with immaterial differences, identical questions.

The materials for which liens are claimed were furnished to Tom B. Stewart, Jr., who had a contract with Morgan to build for him a dwelling, swimming pool and pump-house on that part of the southeast quarter of the southeast quarter of section 31, range 4 east, township 2 north, lying west of the old Cross-Cut canal, containing three and one-fourth acres more or less. The materials were delivered on the premises between about February 1, 1929, and June 3, 1929, and the greater portion of them was used by the contractor in the above construction. During the time of such construction, the building contract between defendant, Morgan and Stewart was enlarged to include the construction or repair of a dwelling for Morgan's ranch foreman, such building being [39 Ariz. 402] about one hundred yards distant from the main structures and upon the northeast quarter of the southeast quarter of said township and range. The plaintiffs knew nothing of this enlargement of the contract or that any of the materials furnished by them to Stewart were to be used thereon. The main building, swimming pool and pump-house were turned over to Morgan on May 15, 1929. On that day his son, P. J. Morgan, for whom these improvements were made, moved into and thereafter occupied the residence, and also took possession of the other improvements and used them for the purposes for which they were intended. The foreman took possession of and moved into the house intended for his use on June 16th or thereabouts.

After the owner took possession of the improvements, on three separate occasions the contractor returned and performed work and labor as follows:

The latter part of August he made a deck for the pump-house, by placing a flooring over it on 2x4's, to keep water off the motor. P. J. Morgan, Jr., when asked the condition of the pump-house when he moved into the premises, said:

"There was no cover on it. . . . The pump house hadn't been quite finished, they did that later. . . . Well . . . when I came back in September they finished it up."

This witness also said the putting of the cover over the pump-house was no part of the original contract, and that it was put on to prevent persons from falling into the

Page 253

opening. The material used in making the cover for the pump-house was not furnished by the plaintiffs, and such work was an afterthought.

About the same time the contractor changed the night latch on the front door of the main dwelling because the owner wanted a different kind of latch. Again in October he adjusted the doors by taking a little off the top or bottom and "trued" the hinges [39 Ariz. 403] to make them work properly. If anything extra was paid for these jobs, it is not shown by the evidence.

The defendant Morgan contends that the notices of liens were not made out, served and filed with the county recorder within the time limit prescribed by the statute; also that it was not shown what part of the materials furnished was used on the premises against which the lien claims were filed and what part ...


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