295

prevails, a lien may be enforced for the amount actually due, even though the claim, through innocent mistake, exaggerates the total debt,2 or includes in the account items which are justly due, but which are not proper subjects of lien,296 or omits proper credits,297 or includes interest promised to be paid, but not yet due,298 or includes items for materials not actually furnished.299 The fact that the claimant knowingly omitted a credit in stating the account is a circumstance to be considered in determining whether he knowingly and willfully claimed more than was due, and thus forfeited his lien; but it is not conclusive on that point, since such omission might be caused by mistake, or by a confusion of two accounts.300 But swearing to an erroneous claim, thoughtlessly and carelessly, without any effort to obtain accessible data from which the error might be corrected, is swearing willfully and knowingly.301

Mill Co., 33 Pac. 1067, 6 Wash. 478; Peterman v. Brewing Co., 39 Pac. 452, 11 Wash. 199; Bolster v. Stocks (Wash.) 43 Pac. 534.

295 Barber v. Reynolds, 44 Cal. 519; Harmon v. Railroad Co., 25 Pac. 124, 86 Cal. 617; Underwood v. Walcott, 3 Allen (Mass.) 464; Heamann v. Porter, 35 Mo. 137; Nolan v. Lovelock, 1 Mont. 224; Mason v. Germaine, 1 Mont. 263; Black v. Appolonio, 1 Mont. 342; Gaskell v. Beard, 11 N. Y. Supp. 399, 58 Hun, 101; Morgan v. Taylor (Com. Pl.) 5 N. Y. Supp. 920.

296 Bank of Charleston v. Curtiss, 18 Conn. 342; Culver v. Schroth, 39 N. E. 115, 153 III. 437; Parker v. Bell, 7 Gray (Mass.) 429; Whitford v. Newell, 2 Allen (Mass.) 424; Hubbard v. Brown, 8 Allen (Mass.) 590; Whitney v. Joslin, 108 Mass. 103; McDonald v. The Nimbus, 137 Mass. 360; Whittier v. Stetson & Post Mill Co., 33 Pac. 393, 6 Wash. 190.

297 Marston v. Kenyon, 44 Conn. 349; McCormack v. Phillips (Dak.) 34 N. W. 39; Corbett v. Greenlaw, 117 Mass. 167; Sexton v. Weaver, 6 N. E. 367, 141 Mass. 273; Schroeder v. Mueller, 33 Mo. App. 28; Rowland v. Harmon, 34 Pac. 357, 24 Or. 529; Chamberlain v. Hibbard, 38 Pac. 437, 26 Or. 428; Rison v. Moon, 22 S. E. 165, 91 Va. 384. Contra, Hoffman v. Walton, 36 Mo. 613.

298 Hopkins v. Forrester, 39 Conn. 351.

299 Peterman v. Brewing Co., 39 Pac. 452, 11 Wash. 199; Bolster v. Stocks, 43 Pac. 534, 13 Wash. 460.

300 Corbett v. Greenlaw, 117 Mass. 167.

801 Gibbs v. Hanchette, 51 N. W. 691, 90 Mich. 657.

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Exceptions.

§ 426. There are, however, some authorities that hold that an error in the claim, whether innocently made or not, vitiates the lien altogether.302 These cases proceed upon the ground that any inaccuracy prevents the claim from being a "just and true account." In a recent case in Michigan it was held that a contractor who was to receive $450 at a certain stage of the work, and $450 more at its completion, lost his lien entirely by filing a claim for $550 after he had earned only the first $450.303 In a case in Oregon it appeared that a mechanic had filed a lien stating that the value of the material furnished by him was $783, and that no payments had been made thereon. On the trial he admitted that prior to the filing of the lien $100 had been paid, and stated that the misstatement in the lien was due to a mistake of his agent. On this state of facts it was held that the mistake not being one about the amount or price of labor, or the quantity or value of material furnished, in regard to which there might be an honest difference of opinion, but being one which could have been avoided by the exercise of reasonable diligence, the lien was lost.304

Amount of Error.

§ 427. Whether or not an error in the account stated in a mechanic's lien claim will avoid the lien does not apparently depend at all on the amount of the erroneous item. In one case failure to give credit for a payment of $4 was held fatal,805 and in another an overcharge of $2.55 in a claim for $368.65 avoided the lien.308 On

202 McPherson v. Walton, 11 Atl. 21, 42 N. J. Eq. 282; Lynch v. Cronan, 6 Gray (Mass.) 531; Truesdell v. Gay, 13 Grạy (Mass.) 311. The hardship wrought by these Massachusetts decisions led the legislature of that state to amend the mechanic's lien law by enacting that no inaccuracy in the claim should invalidate the lien unless the claimant "willfully and knowingly claimed more than is his due." Hubbard v. Brown, 8 Allen (Mass.) 590.

202 Brennan v. Miller, 56 N. W. 354, 97 Mich. 182.

304 Nicolai Bros. Co. v. Van Fridagh, 31 Pac. 288, 23 Or. 149.

305 Lynch v. Cronan, 6 Gray (Mass.) 531.

206 McPherson v. Walton, 11 Atl. 21, 42 N. J. Eq. 282.

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the other hand, liens have been sustained where a claim for $375 contained an error of $287,3 307 where a claim for $4,270 contained an error of $2,736,308 where a claim for $3,500 contained an error of $2,766,809 and even where the error amounted to $6,000.310

Errors Capable of Separation.

§ 428. In order to render an error in the claim harmless, it must not only have been innocently made, but it must also be of such a nature that the elements of a valid lien can be found in the allegations that are correct. Where a mechanic has so intermingled his lien claim with nonlien items that the exact amount for which he is entitled to a lien cannot be readily ascertained by inspection of the claim, the whole lien must fail, whether the error was intentional or unintentional.811 Conversely, it is the rule, wherever innocent mistakes are held to be harmless, that a mechanic's lien is not defeated by including in the account filed lienable and nonlienable items furnished under the same contract, provided the lienable items and their prices are separable from the others, and provided, also, the error was not willfully made.312

307 Whitney v. Joslin, 108 Mass. 103. 308 Marston v. Kenyon, 44 Conn. 349.

309 Kiel v. Carll, 51 Conn. 440.

Thus, where, as against the

310 Harmon v. Railroad Co. (Cal.) 22 Pac. 407. In one case, however, a claim for $6,790, when there was only $2,324 justly due, was held invalid, apparently on account of the greatness of the error. Kling v. Construction Co., 7 Mo. App. 410.

311 Baker v. Fessenden, 71 Me. 292; Kelley v. Kelley, 77 Me. 135; Driscoll v. Hill, 11 Allen (Mass.) 154; Lewin v. Whittenton Mills, 13 Gray (Mass.) 100; Edgar v. Salisbury, 17 Mo. 271; Nelson v. Withrow, 14 Mo. App. 270; Gauss v. Hussman, 22 Mo. App. 115; Murphy v. Murphy, 22 Mo. App. 18; Schulenburg & Boeckler Lumber Co. v. Strimple, 33 Mo. App. 154; Dugan CutStone Co. v. Gray, 43 Mo. App. 671; Reitz v. Ghio, 47 Mo. App. 287; O'Brien Boiler-Works Co. v. Haydock, 59 Mo. App. 653; Whitenack v. Noe, 11 N. J. Eq. 321; Williams v. Coal Co., 36 Pac. 159, 25 Or. 426.

There is, however, a decision in Ohio which holds that a claim in one item for $951 for carpenter work, when only $891 was actually due therefor, may be good for the latter sum, on the principle that the greater includes the less. Thomas v. Huesman, 10 Ohio St. 152.

312 Gordon Hardware Co. v. San Francisco & S. R. Co., 25 Pac. 125, 86 Cal.

owner of property, one is entitled to lien for all the items included in his claim for lien, his entire right to lien as against an incumbrancer is not defeated on the ground that the claim was not just and correct, because some of the items were furnished under an order no item of which was furnished in time to be properly included in such claim.3 313 And where the lien filed by a material man against a railroad is in part for picks, shovels, and similar articles, for which no lien can be asserted, he may segregate the nonlienable articles by proof, and is entitled to have a lien declared for the remainder.3 So, too, a claim for a mechanic's lien which sets out several contracts, and alleges completion of all, will not be vitiated as to the completed contracts by the fact that one of the contracts set out remains incomplete.815 And a mechanic's lien, including accounts for material furnished and for work done, may be good as to the material account, though bad as to the work account, where the two accounts are distinct and separable.316

Mistakes in Dates, Names, and Words.

314

§ 429. The errors considered in the preceding sections relate almost altogether to the account and its items, and most of the errors in mechanic's lien claims are of that nature. In other parts of the claim, however, there may be errors which call for consideration. Generally a mistake in the use of a word, as "occupied" instead of

620; Culver v. Schroth, 39 N. E. 115, 153 Ill. 437; Chase v. Mining Co., 57 N. W. 648, 90 Iowa, 25; Dennis v. Smith, 38 Minn. 494, 38 N. W. 695; Allen v. Smelting Co., 73 Mo. 688; Walden v. Robertson, 25 S. W. 349, 120 Mo. 38; Johnson v. Building Co., 23 Mo. App. 546; Pullis v. Hoffman, 28 Mo. App. 666; McLaughlin v. Schawacker, 31 Mo. App. 365; Midland Lumber Co. v. Kreeger, 52 Mo. App. 418; Price v. Merritt, 55 Mo. App. 640; Maynard v. Ivey, 29 Pac. 1090, 21 Nev. 241; Whitenack v. Noe, 11 N. J. Eq. 321; Brandt v. Verdon (Com. Pl.) 18 N. Y. Supp. 119; McCristal v. Cochran (Pa. Sup.) 23 Atl. 444; North v. La Flesh, 41 N. W. 633, 73 Wis. 520.

313 Chase v. Mining Co., 57 N. W. 648, 90 Iowa, 25.

314 Gordon Hardware Co. v. San Francisco & S. R. Co., 25 Pac. 125, 86 Cal. 620.

215 Brandt v. Verdon (Com. Pl.) 18 N. Y. Supp. 119. 216 Walden v. Robertson, 25 S. W. 349, 120 Mo. 38.

99 317

319

"employed," or "effects" for "offsets," "318 will not invalidate the claim, where the rest of the claim shows clearly what word was intended. As we have seen, dates should be stated in the claim, but if by accident or mistake, and without fraud, the date is erroneously entered, and the proof establishes the doing of the work or the actual delivery of the materials which are charged, and supplies the correct date, which is within the time allowing the lien to be filed, the error cannot be availed of to defeat recovery.31 It has been held that a claim which counts on an agreement to pay for the claimant's work what it was reasonably worth, when in fact the contract was to do the work for an agreed price, is fatally defective,320 but that where, after a subcontractor furnishes material, and before the filing of the claim for a lien, the owner of the premises conveys them, the fact that the claim by the subcontractor for a lien states that the contractor, to whom the material was furnished, was the agent of the grantee instead of the grantor, will not invalidate the lien.3 321 Where the statute requires the claim to state whether all the work contracted for has been actually performed, and, if not, how much of it, a claim which knowingly and falsely states that all the work has been performed according to the contract, and that the whole amount of the contract price is due, is invalid unless the misstatement is an unimportant one.322 Errors in the description

of the property subject to the lien will be considered hereafter.323

817 McDonald v. Backus, 45 Cal. 263.

818 Merchant v. Humeston, 7 Pac. 433, 2 Wash. T. 433.

319 Pacific Mut. Life Ins. Co. v. Fisher, 42 Pac. 154, 109 Cal. 566; Treusch v. Shryock, 55 Md. 330; Linne v. Stout, 43 N. W. 377, 41 Minn. 483; Althen v. Tarbox, 50 N. W. 1018, 48 Minn. 18; Miller v. Condit, 55 N. W. 47, 52 Minn. 455; Mesker v. Cutler, 51 Mo. App. 341; Brockmeier v. Dette, 58 Mo. App. 607; Hillary v. Pollock, 13 Pa. St. 186; Edleman v. Kidd, 26 N. W. 116, 65 Wis. 18. Contra, Milligan v. Hill, 4 Phila. 52.

320 Reed v. Norton, 26 Pac. 767, 27 Pac. 426, and 90 Cal. 590.

321 Lax v. Peterson, 44 N. W. 3, 42 Minn. 214.

322 Ringle v. Iron Works, 28 N. Y. Supp. 107, 76 Hun, 449, reversing 24 N. Y. Supp. 757, 4 Misc. Rep. 15; Close v. Clark (Com. Pl.) 9 N. Y. Supp. 538; Foster v. Schneider, 2 N. Y. Supp. 875, 50 Hun, 151.

823 See post, § 132.

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