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* thereon *
and petition, is as follows: "Any person who shall under contract with the owner of any tract or piece of land or with the * husband *** of such owner, furnish material for the erection of any building * shall have a lien upon the whole of said piece or tract of land, the building and appurtenances, in the manner herein provided, for the amount due him for such * materials. * * *” The mode of procedure to acquire the lien and to enforce same is set forth in section 4818. No other notice than that of filing the lien is, in such cases, required. The rule is obviously different from that required where the person seeking the lien has sold the material to a contractor or subcontractor.
The facts found and appearing from the pleadings and exhibits, we think, bring this case within the terms of the foregoing statutes. We think the facts and exhibits show that the plaintiff, Block, sold the material under a contract with W. J. Pearson, the husband of E. T. Pearson, the owner of the leasehold upon the land upon which the house was built; that the material was furnished for the erection of a building upon said real estate. If this position is correct, then the statute gives Block a lien upon Mrs. Pearson's interest in the real estate by complying with the requirements of the statute necessary to effectuate such lien. It is contended that the fee of the land is in the United States, and that the primary disposal of the soil cannot be interfered with. These contentions may be conceded, and yet they are not fatal to this case. Our statute was adopted from the state of Kansas, where it has been in force many years and has frequently been the subject of judicial interpretation. It is there held that the term "owner" embraces a leasehold, and that the lien of the statute will attach to whatever of interest, legal or equitable, the occupant may have, subject to the paramount right of the holder of the fee, and we think this sound in principle. Seitz et al. v. U. P. Ry. Co., 16 Kan. 133; Hathaway et al. v. Davis et al., 32 Kan. 693, 5 Pac. 29; Chicago Lumber Co. v. Osborn et al., 40 Kan. 168, 19 Pac. 656; Meyer Bros. Drug Co. v. Brown et al., 46 Kan. 543, 26 Pac. 1019; Chicago Lumber Co. v. Fretz et al., 51 Kan. 134, 32 Pac. 908; Mulvane v. Chicago Lumber Co., 56 Kan. 675, 44 Pac. 613. While it is true the referee states as a conclusion that Pearson made no contract with Block for the material, we think this conclusion unsound. We can only look to the findings and exhibits, but from these it is obvious that Pearson was erecting a house upon his wife's land for her use. and was looking after the affairs pertaining to the same. He directed Block to charge the material to him and agreed to pay for it. He knew Block delivered the material. The statement shows that it was charged to Pearson, per Robinson. Pearson knew it was received and used, and he knew it was not
paid for at the time he paid Robinson. An order for property, and a promise to pay for it, its delivery and acceptance, constitute a valid and binding contract. It is suggested that this was an oral promise to answer for the debt of another, and not binding because not in writing. We think this a misstatement of the case. Pearson was not offering to pay the debt of another. He ordered the material for his own use. IIe was building the house for his wife. He was making a promise to pay his own debt, and was bound by his promise. Trulock v. Blair, 8 Okl. 345, 58 Pac. 1097; Kessler et al. v. Cheadle, 12 Okl. 489, 72 Pac. 367. We think there was manifest error upon the facts stated in holding that the lien was void.
The next contention is that the court erred in not giving the plaintiff personal judgment against W. J. Pearson for the amount of his demand. The law, as stated by the referee, and as applied by the court, was correct as to the original lien statement and pleadings, but was erroneous as applied to the amended lien statement and petition. We think the plaintiff should have been allowed judgment against Pearson for the balance due on his account, with interest and costs.
The judgment of the district court of Comanche county is reversed, with directions to the district court to set aside the conclusions of law and to restate the same in accordance herewith, or grant a new trial, as seems most consistent with justice and right. All the Justices concur, except GILLETTE, J.. who tried the case below, not sitting, and IRWIN, J., absent.
(14 N. M. 282)
BROWN & MANZANARES CO v. GUISE. (Supreme Court of New Mexico. Aug. 28, 1907.) 1. ACCOUNT STATED-BALANCE-CURRENT ACCOUNT.
The balance of a stated account may become an item of a succeeding current account. 2. LIMITATION OF ACTIONS ACCRUAL OF RIGHT OF ACTION-ACCOUNTS.
Where the balances of accounts stated were each year carried forward into the next year's current account as a part thereof, with the consent of the debtor, who assented to the balances each year, none of the balances ever became more than one year old before they were supported by a new promise. when the account was stated at the end of the next year, and the balances did not stand as a distinct cause of action within the statute of limitations. 3. ACCOUNT STATED-CONCLUSIVENESS.
The items composing an account stated cannot be questioned in the absence of fraud or mistake.
[Ed. Note. For cases in point, see Cent. Dig. vol. 1, Account Stated, §§ 50-56.] 4. SAME-INTEREST.
Comp. Laws 1897, § 2550, fixing the legal rate of interest at 6 per cent.. in the absence of a written contract fixing a different rate, does not prevent a debtor from paying more than 6 per cent., if he elects, and a debtor who knows that an account stated contains items of interest on average monthly balances agrees to pay interest on the monthly balances.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Account Stated, § 59.]
Under Code Civ. Proc. § 94, providing that defects in pleadings not against the justice of the matter of the action and not altering the issue shall be amended, a complaint in an action on an account stated may be amended by striking out allegations with respect to credits claimed by defendant.
Appeal from District Court, San Miguel County; before Chief Justice William J. Mills.
T. B. Catron. for appellant. Jones & Rogers, for appellee.
the balance of the account stated each year was carried forward into the next year's current account as a part thereof without objection on his part and with his full knowledge and consent, and the lower court so found. He also testifies that the amount of this balance each year was assented to by him as correct. It is difficult to understand how a defendant, in charge of plaintiff's books of account in which his account was Action by the Brown & Manzanares Com-kept and in which annual balances were corpany against Cassius C. Guise. From a judg-rectly stated and brought down as the first ment for plaintiff, defendant appeals. Af- item of the next annual account, and all this firmed. done by himself or under his direction, could be heard to say that such balances did not become a part of the succeeding year's current account. We have then in this case an annual stated account between the parties. If it is true, as we have decided, that the balances of a stated account may, and in this case did, become an item of the succeeding current account, then none of these balances ever became more than one year old before they were supported by a new promise, when the account was again stated at the end of the next year. Under such circumstances, the statute of limitations had no application. Gibson v. Sumner, 6 Vt. 163; Auzerais v. Naglee, 15 Pac. 371, 74 Cal. 60; Union Bank v. Knapp, 3 Pick. (Mass.) 96, 15 Am. Dec. 181. We have examined the cases cited by counsel for appellant and find them not opposed to this conclusion. Chace v. Trafford, 116 Mass. 529, 17 Am. Rep. 171, is a case holding that the stating of an account more than six years after the last item in a current account did not revive the debt as to such item and take it out of the statute because the account was not stated in writing. Belchertown v. Bridgman, 118 Mass. 486, was a case where an attempt was made to question the correctness of a balance more than six years old, and it was held that the same could not be done. Porter v. Railway Co., 99 Iowa, 351, 68 N. W. 724, was a case where the balance of a stated account was not carried forward into the succeeding current account, and it was held that the statute of limitations had run against such balance.
PARKER, J. It appears that the appellant was employed by appellee from 1893 to 1902 in the capacity of bookkeeper and cashier, and was also a director of the plaintiff corporation. During this time an account was carried in the books of appellee with appellant, in which were charged goods and money as received by appellant, and in which was credited monthly salary and extra allowance at the end of each month. At the end of each fiscal year of appellee, the account was balanced, and the balance brought down as the first item of the next year's account. Interest at 6 per cent. per annum was charged or credited at the end of each fiscal year on average monthly balances for or against appellee, as the case might be, and brought down as a part of the balance and first item of the account for the next year. The appellant admits in the second paragraph of his answer that the account was a stated account at the end of each fiscal year, but insists that the balance of such annual stated account cannot be included in the succeeding annual current account.
1. The first question therefore is as to whether a balance of a previous stated account can be included as one of the items of a succeeding current account, and whether the statute of limitations does not apply to such balance, notwithstanding its inclusion in the succeeding current account. Upon authority there is no fundamental objection to a balance of a stated account becoming an item of a succeeding current account. 1 Cyc. 367; Dows v. Durfee, 10 Barb. (N. Y.) 213; Fleischner v. Kubli, 20 Or. 328, 25 Pac. 1086; Gibson v. Sumner, 6 Vt. 163; Auzerais v. Naglee, 15 Pac. 371, 74 Cal. 60; Union Bank v. Knapp, 3 Pick. (Mass.) 96, 15 Am. Dec. 181. This is not seriously controverted by appellant, but he insists that the balances continue to stand alone as a distinct cause of action, and the statute of limitations once set in motion continues to run, regardless of the fact that such balances became a first item in the succeeding current account. This position is untenable both on principle and authority. In this case a fair result, we think, of the defendant's testimony, is that
2. As before stated, we have a stated account between these parties from which flow certain important consequences. The account being stated, neither party, in the absence of fraud or mistake, can question the correctness of any item composing the same. This is attempted to be done by appellant as to the items of interest charged on average monthly balances, upon the theory that a contract in writing is a prerequisite to such a charge under section 2550, Comp. Laws 1897. It is true that, in order to collect more than 6 per cent. interest, a contract in writing is necessary; but there is nothing in the law which prevents the debtor from paying more if he so elects. The stating of an account containing such items is the same thing in effect. zerais v. Naglee, 15 Pac. 371, 74 Cal. 60; Por
ter v. Price, 80 Fed. 655, 26 C. C. A. 70; Allen v. Nettles, 2 South. 602, 39 La. Ann. 788. The same doctrine applies to the claim of appellant for additional salary of $50 per month over and above the amount with which he was credited. There is no claim of fraud or mistake, in the absence of which the account cannot be impeached. 1 Cyc. 454; Oil Co. v. Van Etten, 107 U. S. 325, 1 Sup. Ct. 178, 27 L. Ed. 319. And even if it were an open question of fact as to the $50 per month additional salary, we think the trial court correctly found against the appellant on that issue.
3. Some doubt is expressed by counsel for plaintiff as to whether an account stated was properly pleaded, and they asked to amend by striking out a portion of the complaint on page 6 of the printed record, which is as follows: "Except that said defendant at said time claimed he was entitled to certain credits on the credit side of said account which he claims has not been allowed; in this, that he claimed that he was entitled to credits for salary at the rate of two thousand ($2,000) per annum, instead of at the rate of twelve hundred ($1,200) per annum as credited on said account, but that no objection was made to the debit side of said account, and the same was admitted to be correct." The amendment is allowed under section 94 of the Code of Civil Procedure.
We find no error in the record, and the judgment of the lower court is affirmed, and it is so ordered.
McFIE, POPE, ABBOTT, and MANN, JJ., concur. MILLS, C. J., having tried the case below, did not participate in this decision.
(14 N. M. 271)
EAGLE MINING & IMPROVEMENT CO. v. HAMILTON et al.
HAMILTON et al. v. EAGLE MINING & IMPROVEMENT CO.
(Supreme Court of New Mexico. Aug. 28, 1907.) 1. TRUSTS-EXPRESS TRUSTS.
A trust arising from agreement of parties, whether written or oral, is express, and must be manifested or proved, although it need not be created, by some writing.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, § 15.]
2. SAME EVIDENCE.
The findings of the trial court on the nature and terms of the trust in question in this cause are warranted by the evidence.
[Ed. Note. For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 66-68.]
The correspondence between the president and the secretary and treasurer of a corporation and a person having contemporay business transactions with it. in relation to such transactions, is admissible on the question of acquiescence on the part of the corporation in the statement of the nature and terms of the transactions which are the subject of the correspondence
made by the other party to them in his letters to such officers.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, $ 779.]
4. APPEAL-TRIAL BY COURT REVIEW OF FINDINGS.
In the trial of a cause by a judge without a jury, he must determine the weight and credibility of the evidence adduced, and this court will not ordinarily disturb a conclusion which, so far as appears, may have resulted from such determination.
[Ed. Note. For cases in point, see Cent. Dig. vol. 3. Appeal and Error. § 3972.]
5. SAME-FAILURE TO MAKE FINDINGS.
The remedy for the failure of the judge trying the cause without a jury to make a finding on a material issue is not by appeal, but by a motion for further findings.
[Ed. Note. For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1322.] (Syllabus by the Court.).
Appeal from District Court, Lincoln County; before Justice Edward A. Mann.
Action by the Eagle Mining & Improvement Company against Mary R. Hamilton and others and by II. B. IIamilton, administrator, and others against the Eagle Mining & Improvement Company. The cases were consolidated, and from the judgments the Eagle Mining & Improvement Company appeals. Affirmed.
These cases, originally numbered 1,444 and 1,539 in the district court for Lincoln county, were consolidated and tried together by Mann, J., without a jury, and were so heard in this court. The appellees are the administrator, the widow, and the heirs of Humphrey B. Hamilton, to whom by two deeds, Exhibits A and B in the record, were conveyed certain interests in the Hopeful lode mining claim and mill site in the county of Lincoln, N. M. The first deed bears date April 15, 1901: the other March 4, 1902. They were delivered to Hamilton June 30, 1902. The parties are agreed that the said Hamilton held the property conveyed by those deeds in trust for the Eagle Mining & Improvement Company, the appellant; but they differ as to whether the trust was express, and out of that difference arise the principal questions now before us. The appellees claimed that the appellant was indebted to the said Hamilton in the sum of $10,500 in connection with the transaction to which the two deeds above named relate, with interest from the day of delivery, June 30, 1902, and the further amount of $10,000 for services as the general attorney of said company for about two years, and that he had a lien on the property so conveyed to him for the total amount of such indebtedness. The appellant admits that it owed Hamilton $9,500, less certain payments, but claims it was for all services, including what he did in obtaining said deeds; denies that he had a lien as claimed, or was entitled to interest. The appellant also alleged in its answer to the complaint of the appellees, in case No. 1,539, that it was the owner of the premises conveyed by said deeds under certain tax
deeds, and that was denied by the appellees, | Parsons above named, but not for other servthe plaintiffs in said cause, in their replica-ices rendered by him. In fact, there remained tion. In the first cause the plaintiff. here the appellant, prayed for conveyance to itself of the property conveyed to Hamilton by said deeds. In the second, the plaintiffs, here the appellees, pray that an account be taken, and that, in default of payment by the defendant of the amount found to have been due from it to the said IIamilton at his decease, the said property be sold to pay such indebtedness.
Geo. W. Prichard, for appellant. James G. Fitch, for appellees.
ABBOTT, J. (after stating the facts as above). That there was between the Eagle Mining & Improvement Company and Humphrey B. Hamilton a parol agreement, under which he purchased the property conveyed to him by the two deeds above named, is not practically in dispute between the parties, and as to most of its details they do not differ. Hamilton was to have the property deeded to himself. He was to receive from the company $15,000 for the purchase of it, and was to have and retain for himself the excess of that amount above what he might have to expend to obtain the property. He was, besides, to waive his claim, under an agreement with one E. S. Parsons for a commission on the sale of the interest of the latter in certain property which he conveyed to the Eagle Mining & Improvement Company direct. As to other particulars of the agreement between them the parties differ. We think, however, that the undisputed evidence proves an express, rather than a resulting, trust. The difference between an express and a resulting trust is that the latter results or arises from circumstances which may be proved by any legal evidence, verbal or written: while the former is created by agreement not necessarily made in writing, but which must be manifested or proved by writing. Perry on Trusts, §§ 26, 79: Kronheim v. Johnson, 7 Ch. D. 60. Anstice v. Brown. 6 Paige (N. Y.) 448, 453.
The judge who heard the cause found that the letters from IIamilton to the appellant. or its officers, in relation to the subject-matter, which were apparently not questioned by them at the time. established an express trust. That such writings are legally sufficient for that purpose is well settled. Perry on Trusts. $ 82; Urann v. Coats. 109 Mass. 581; Steers v. Steers, 5 Johns. Ch. 1. 9 Am. Dec. 256. That being the case, it was for him to decide what were the terms of the agreement from the evidence. He found that the appellant agreed to furnish to Hamilton $15,000. which was to include the purchase price of the interests in land conveyed by the two deeds first above referred to, his pay for making the purchase and compensation for giving up the claim against E. S.
an amount, after deducting the purchase price, which would seem to be more than a liberal compensation for the services probably performed by Hamilton, but that is judg ing after the event. It might have proved to be necessary to pay the entire $15,000 for the interest acquired, and in that case Hamilton would have been entitled to nothing for his services to the appellant in that matter, and nothing on account of his claim against E. S. Parsons. The trial judge found, too, that Hamilton was not bound to give up the title to the property in question until he received the amount to which he was entitled from the appellant for services rendered in the purchase of it; in effect, that he had a lien on it for that sum. That was in accordance with repeated statements in writing made by Hamilton to officers of the appellant corporation and not questioned by them. But the terms of the agreement were to be determined in the trial court, and were so determined, on evidence which seems to us amply sufficient to sustain the findings there made. The same is true of the findings that Hamilton was employed as the general counsel of the appellant, was entitled to compensation for services rendered in that capacity, and that the amount claimed therefor was reasonable. It is true that the evidence on some or all of these points was conflicting. but the weight and credibility of the evidence adduced were for the trial judge to determine, and if, in the course of the trial, he came to the conclusion that any witness had testified falsely in a certain particular, he had the right to disregard all his testimony. That this court will presume a finding of fact was properly made, unless the contrary plainly appears, is too well established to require discussion.
The appellant alleges error in the admission of the correspondence between Hamilton and Tilden, its president, and Sturgeon, its secretary and treasurer, on the ground that the statements in Hamilton's letter were selfserving, and that it did not appear that the officers named had any authority from the board of directors, or otherwise, to bind the corporation in the matter in question, especially since, as the appellant claims, it was a past transaction. The correspondence related to cotemporary transactions, to trust which had not been terminated by performance of its conditions, and to the services of Hamilton which were then being rendered. As we have seen it was found by the trial court that the letters of Hamilton proved the existence and contained the terms of the express trust between the parties. They also contained statements relating to Hamilton's services as general attorney for the appellant. The only effect given to the letters from the appellant's officers was that
of acquiescence in the correctness of the statements in Hamilton's letters. It was not claimed that liability was created in that way but that liabilities to and by the corporation which had been created in another way were not disavowed but recognized as existing. It does not appear that the findings of the court depended on this correspondence, since there was other evidence, including letters between Hamilton and Rice, the appellant's general manager, who it was claimed in its behalf was the only one who could bind it in such matters; but it is clear, we think, that the evidence was admissible on the question of acquiescence. Union Gold Mining Co. v. Rocky Mountain National Bank, 96 U. S. 640, 24 L. Ed. 648; 4 Thompson on Corporations, 5228.
The eleventh assignment of error relates to the tax title set up by the appellant, and alleges a refusal by the court to rule on that question. We find no such refusal in the record. If the appellant considered that a material issue had been raised by its claim of title under tax deeds and the denial of the appellees, its remedy for the omission of the court to find specifically on that point was not by a motion for a new trial, but by an application for further findings. Warner v. Foote, 40 Minn. 176, 41 N. W. 935; Eakin v. McCraith, 2 Wash. T. 112, 3 Pac. 838; Bahnsen v. Gilbert, 55 Minn. 334, 56 N. W. 1117. No such application was made by the appellant, although the court had made the same omission in a memorandum opinion filed in the cause during its progress, to which the appellant had filed numerous specific objections without mentioning the failure to refer to the tax title, which could hardly have escaped notice.
The appellant claims that there was error in allowing interest on the sum found to be due the defendant under the terms of the trust, on the ground especially that "he can make no profit of his office." The claim of Hamilton was for services in obtaining deeds of the property to himself, and not for anything done after he became trustee. The trial court found that at a certain date he had done all that he had agreed to do for the appellant in relation to the property he held in trust, except to convey that property to it, and that he was ready and offered to make conveyance on the compliance by it with the terms of the trust, and on that state of facts found, we think correctly, that he was entitled to interest on the compensation he was to receive from the time it became due. Armijo v. Abeytia, 5 N. M. 533, 25 Pac. 777; 22 Cyc. 1495.
MILLS, C. J., and PARKER, POPE, and McFIE, JJ., concur. MANN, J., having tried the case below, did not participate in this decision.
(14 N. M. 226)
CHURCH v TERRITORY. (Supreme Court of New Mexico. Aug. 28, 1907.) 1. CRIMINAL LAW-MOTION IN ARREST-DEFECTS IN INDICTMENT.
An indictment. alleging that accused, the proprietor of a saloon, "where gambling is carried on, *** unlawfully*** allow" a minor to gamble, though defective for failing to use the word "did" before the word "unlawfully," states a violation of Laws 1901. p. 19. c. 3. § 3. making a proprietor of a saloon. where gambling is carried on, who permits minors to gamble, guilty of a misdemeanor, as against a motion in arrest.
[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, §§ 2445-2462.]
2. GAMING-OFFENSES-STATUTES-DEFENSES. That the proprietor of a saloon, where gambling is permitted, instructed his employés not to allow minors to gamble in the saloon, is no defense, on his trial for violating Laws 1901, p. 19, c. 3, § 3, punishing the proprietor of a saloon, where gambling is carried on, for permitting a minor to gamble therein. 3. SAME-INTENT.
Laws 1901, p. 19, c. 3, § 3, punishing the proprietor of a saloon, where gambling is permitted, for permitting a minor to gamble therein, neither makes the intent an element of the offense, nor provides that it shall be knowingly done.
[Ed. Note. For cases in point, see Cent. Dig. vol. 24, Gaming, § 124.]
The word "knowingly," in an indictment charging the proprietor of a saloon with unlawfully and knowingly permitting a minor to gamble therein, in violation of Laws 1901, p. 19, c. 3, § 3, punishing the proprietor of a saloon where gambling is carried on, who permits a minor to gamble therein, is surplusage.
[Ed. Note. For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 259.] 5. GAMING - OFFENSES — LIABILITY OF EMPLOYER FOR ACTS OF EMPLOYÉS. Under Laws 1901, p. 19, c. 3, § 3, punishing the proprietor of a saloon, where gambling is permitted, for permitting any minor to gamble therein, and the statute providing that the act of the employé shall be the act of the proprietor, the proprietor of a saloon, where gambling is permitted, is liable for the act of his employé, though he has no knowledge thereof, and though the employé acts contrary to instructions. 6. SAME-EVIDENCE-SUFFICIENCY.
Where, on the trial of the proprietor of a saloon for permitting a minor to gamble therein, the evidence showed that a roulette wheel was in the saloon, that a third person was oper ating it, that a minor played thereon, and a witness testified that he believed he saw a barkeeper there, and accused failed to testify that the third person was not his employé, the jury were warranted in finding that the employés of the proprietor permitted the minor to gamble. [Ed. Note. For cases in point, see Cent. Dig. vol. 24, Gaming, §§ 291-298.] 7. SAME.
Where, on the trial of the proprietor of a saloon for permitting minors to gamble therein, in violation of Laws 1901, p. 19, c. 3. § 3, the evidence showed that a roulette wheel was in the saloon, that it was operated by a third person, and that a minor played thercon, and the court charged that there could be no conviction unless the jury believed that the offense was committed by the proprietor or one of his employés, and submitted the question as to whether the offense was committed by employés, an instruction based on the view that the third person was not an employé was properly refused.