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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 * * * thereon

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 1818. 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 Kaisas, 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. Oshorn et al., 40 Kan. 168. 19 Pac. 656; Meyer, Bros. Drug Co. v. Brown et al., 16 Kan. 513, 26 Pac. 1019; Chicago Lumber Co. v. Fretz et al., 51 Kan. 131, 32 Pac. 908; Vulvane v. Chicago Lumber Co., 56 Kan. 675, + 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 al 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. IIe 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. Ile 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. 315, 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 triell 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


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, 88 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, 8 59.]

5. PLEADING-AMENDMENTS- ALLOWANCE. the balance of the account stated each year Under Code Civ. Proc. $ 94, providing that

was carried forward into the next year's curdefects in pleadings not against the justice of the matter of the action and not altering the

rent account as a part thereof without obissue shall be amended, a complaint in an action jection on his part and with his full knowlon an account stated may be amended by strik-edge and consent, and the lower court so ing out allegations with respect to credits claim found. He also testifies that the amount of ed by defendant.

this balance each year was assented to by Appeal from District Court, San Miguel

him as correct. It is difficult to understand County; before Chief Justice William J. how a defendant, in charge of plaintiff's Mills.

books of account in which his account was Action by the Brown & Manzanares Com- kept and in which annual balances were corpany against Cassius O. Guise. From a judg- | rectly stated and brought down as the first ment for plaintiff, defendant appeals.


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 T. B. Catron, for appellant. Jones & Ro

become a part of the succeeding year's current yers, for appellee.

account. We have then in this case an an

nual stated account between the parties. IL PARKER, J. It appears that the appel- it is true, as we have decided, that the ballant was employed by appellee from 1893 to

ances of a stated account may, and in this 1902 in the capacity of bookkeeper and cash

case did, become an item of the succeeding ier, and was also a director of the plaintiff

current account, then none of these balances corporation. During this time an account

ever became more than one year old before was carried in the books of appellee with ap- they were supported by a new promise, when pellant, in which were charged goods and

the account was again stated at the end of money as received by appellant, and in which

the next year. Under such circumstances, was credited monthly salary and extra al

the statute of limitations had no application. lowance at the end of each month. At the

Gibson v. Sumner, 6 Vt. 163; Auzerais v. end of each fiscal year of appellee, the ac

Naglee, 15 Pac. 371, 74 Cal. 60; Union Bank count was balanced, and the balance brought

v. Knapp, 3 Pick. (Mass.) 96, 15 Am. Dec. 181. down as the first item of the next year's ac

We have examined the cases cited by counsel count. Interest at 6 per cent. per annum was

for appellant and find them not opposed to charged or credited at the end of each fiscal

this conclusion. Chace r. Trafford, 116 Mass. year on average monthly balances for or

529, 17 Am. Rep. 171, is a case holding that against appellee, as the case inight be, and

the stating of an account more than six years brought down as a part of the balance and

after the last item in a current account did first item of the account for the next year.

not revive the debt as to such item and take The appellant admits in the second para

it out of the statute because the account was graph of his answer that the account was a stated account at the end of each fiscal year,

not stated in writing. Belchertown v. Bridg

man, 118 Mass. 486, was a case where an but insists that the balance of such annual stated account cannot be included in the

attempt was made to question the correctness succeeding annual current account.

of a balance more than six years old, and it

was held that the same could not be done. 1. The first question therefore is as to

Porter v. Railway Co., 99 Iowa, 331, 68 N. W. whether a balance of a previous stated account can be included as one of the items of

724, was a case where the balance of a stat

ed account was not carried forward into the a succeeding current account, and whether the statute of limitations does not apply to

succeeding current account, and it was held

that the statute of limitations had run such balance, notwithstanding its inclusion

against such balance. in the succeeding current account. Upon authority there is no fundamental objection

2. As before stated, we have a stated acto a balance of a stated account becoming an

count between these parties from which flow item of a succeeding current account. 1 Cyc.

certain important consequences. The account 367; Dows y. Durfee, 10 Barb. (N. Y.) 213;

being stated, neither party, in the absence of Fleischner v. Kubli, 20 Or. 328, 25 Pac, 1086;

fraud or mistake, can question the correctGibson V. Sumner, 6 Vt. 163; Auzera is v.

ness of any item composing the same. This Naglee, 15 Pac. 371, 74 Cal. 60; Union Bank

is attempted to be done by appellant as to the v. Knapp, 3 Pick. (Mass.) 96, 15 Am. Dec. 181.

items of interest charged on average monthly This is not seriously controverted by appel. balances, upon the theory that a contract in lant, but he insists that the balances (on- writing is a prerequisite to such a charge untinue to stand alone as a distinct cause of der section 2550, Comp. Laws 1897. It is true action, and the statute of limitations once

that, in order to collect more than 6 per cent. set in motion continues to run, regardless of interest, a contract in writing is necessary; the fact that such balances became a first but there is nothing in the law which preitem in the succeeding current account. This | vents the debtor from paying more if he so position is untenable both on principle and elects. The stating of an account containing authority. In this case a fair result, we such items is the same thing in effect. Authink, of the defendant's testimony, is that | zerais v. Naglee, 15 Pat. 371, 74 Cal. 60; Por

ter v. Price, 80 Fed. 655, 26 O. 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. 4.51; 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 creditel 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.

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. Xote.-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. Yote.-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 & linprovement Company. The cases were consolidated, and from the judgments the Eagle Mining & Improvement Company appeals. Affirmed.

These cases, originally numbered 1,144 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, 1301 : 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 couveyed by said deeds under certain tax

McFIE, POPE, ABBOTT, and MANN, JJ., concur. MILLS, C. J., having tried the case below, did not participate in this decision.




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.] 3. EVIDENCE-ADMISSIONS-ACQUIESCENCE.

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

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 an amount, after deducting the purchase the appellant, prayed for conveyance to it- price, which would seem to be more than a self of the property conveyed to Hamilton liberal compensation for the services probaby said deeds. In the second, the plaintiffs.bly performed by IIamilton, but that is judghere the appellees, pray that an account ing after the event. It might have proved be taken, and that, in default of payment to be necessary to pay the entire $15.000 by the defendant of the amount found to have for the interest acquired, and in that case been due from it to the said Ilamilton at his Ilamilton would have been entitled to nothing decease, the said property be sold to pay such for his services to the appellant in that matindebtedness.

ter, and nothing on account of his claim Geo. W. Prichard, for appellant. James

against E. S. Parsons. The trial judge found, G. Fitch, for appellees.

too, that Hamilton was not bound to give

up the title to the property in question until ABBOTT, J. (after stating the facts as

he received the amount to which he was enabove). That there was between the Eagle

titled from the appellant for services renMining & Improvement Company and Ilum

dered in the purchase of it; in effect, that phrey B. Ilamilton a parol agreement, under

he had a lien on it for that sum. That was which he purchased the property conveyed to

in accordance with repeated statements in him by the two deeds above named, is not

writing made by Hamilton to officers of the practically in dispute between the parties, iind

appellant corporation and not questioned as to most of its details they do not differ.

by them. But the terms of the agreement Hamilton was to have the property deeded

were to be determined in the trial court, and to himself. He was to receive from the com

were so determined, on evidence which seems pany $15,000 for the purchase of it, and was

to us amply sufficient to sustain the findings to have and retain for himself the excess of

there made. The same is true of the findings that amount above what he might have to

that lIamilton was employed as the general expend to obtain the property. Ile was, be

counsel of the appellant, was entitled to comsides, to waive his claim, under an agreement

pensation for services rendered in that cawith one E. S. Parsons for a commission on

pacity, and that the amount claimed therefor the sale of the interest of the latter in certain

was reasonable. It is true that the evidence property which he conveyed to the Eagle on some or all of these points was conflicting, Mining & Improvement Company direct.

but the weight and credibility of the evito other particulars of the agreement between

dence adduced were for the trial judge to them the p:irties differ. We think, however,

determine, and if, in the course of the trial, that the undisputed evidence proves an ex

he came to the conclusion that any witness press, rather than a resulting, trust. The had testified falsely in a certain particular, difference between an express and a result

he had the right to disregard all his tesing trust is that the latter results or arises timony. That this court will presume a from circumstances which may be proved by

finding of fact was properly made, unless any legal evidence, verbal or written: while the contrary plainly appears, is too well esthe former is created by agreement not nec

tablished to require discussion. essarily made in writing, but which must be The appellant alleges error in the admission manifested or proved by writing. Perry on of the correspondence between IIamilton and Trusts, $8 26, 79; Kronheim v. Johnson, 7 Tilden, its president, and Sturgeon, its secCh. D. 00. Anstice v. Brown, 6 Paige (X. retary and treasurer, on the ground that the Y.) 118, 15:3.

statements in Hamilton's letter were selfThe judge who heard the cause found that serving, and that it did not appear that the the letters from Ilamilton to the appellant, officers named had any authority from the or its officers, in relation to the subject-mat- board of directors, or otherwise, to bind the ter, which were apparently not questionell hy corporation in the matter in question, esthem at the time. established an express pecially since, as the appellant claims, it was trust. That such writings are legally suffi- a past transaction. The correspondence recient for that purpose is well settled. Perry lated to cotemporary transactions to the on Trusts, $ 82; Urann v. Coats. 109 Mass. trust which had not been terminated by 581; Steers v. Steers, 5 Johns. Ch. 1, 9 Am. performance of its conditions, and to the Dec. 256. That being the case, it was for services of Hamilton which were then being him to decide what were the terms of the rendered. As we have seen it was found by agreement from the evidence. He found the trial court that the letters of Ilamilton that the appellant agreed to furnish to Ilamil- proved the existence and contained the ton $1.5.000. which was to include the pur- of the express trust between the parties. chase price of the interests in land conveyed | They also contained statements relating to by the two deeds first above referred to, his Hamilton's services as general attorney for pay for making the purchase and compensa- the appellant. The only effect given to the tion for giving up the claim against E. S. letters from the appellant's officers was that of acquiescence in the correctness of the

(14 N. M. 226) statements in Hamilton's letters. It was not

CHURCII » TERRITORY. claimed that liability was created in that (Supreme Court of New Mexico. Aug. 28, 1907.) way but that liabilities to and by the cor- 1. CRIMINAL LAW-MOTION IN ARREST-DEporation which had been created in another FECTS IN INDICTMEST. way were not disavowed but recognized as

An indictment. alleging that accused, the

proprietor of a saloon, "where gambling is carexisting. It does not appear that the findings ried on, * * * unlawfully * * * allow" a of the court depended on this correspondence, minor to gamble, though defective for failing since there was other evidence, including let

to use the word "did" before the word "unters between Ilamilton and Rice, the appel

lawfully," states a violation of Laws 1901, p.

19, c. 3, § 3, making a proprietor of a saloon, lant's general manager, who it was claimed in where gambling is carrier on, who permits its behalf was the only one who could bind minors to gamble, guilty of a misdemeanor, as it in such matters; but it is clear, we think,

against a motion in arrest. that the evidence was admissible on the ques

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 15, Criminal Law, $8 2410-2462.) tion of acquiescence. Union Gold Mining Co.

2. GAMING-OFFENSES-STATUTES-DEFENSES. v. Rocky Mountain National Bank, 96 U. S.

That the proprietor of a saloon, where 6-10, 24 L. Ed. 648; 4 Thompson on Corpora- gambling is permitted, instructed his employés tions, 5228.

not to allow minors to gamble in the saloon,

is no defense, on his trial for violating Laws The eleventh assignment of error relates to

1.901, p. 19, c. 3, § 3, punishing the proprietor the tax title set up by the appellant, and al- of a saloon, where gambling is carried on, for leges a refusal by the court to rule on that

permitting a minor to gamble therein. question. We find no such refusal in the


Laws 1901, p. 19, c. 3, § 3, punishing the record. If the appellant considered that a

proprietor of a saloon, where gambling is permaterial issue had been raised by its claim mitted, for permitting a minor to gamble therein, of title under tax deeds and the denial of the

neither makes the intent an element of the ofappellees, its remedy for the omission of the

fense, nor provides that it shall be knowingly

done. court to find specifically on that point was [Ed. Note.-For cases in point, see Cent. Dig. not by a motion for a new trial, but by an vol. 24, Gaming, $ 124.] application for further findings. Warner v. 4. INDICTMENT-SURPLUSAGE. Foote, 40 Minn. 176, 41 N. W. 935; Eakin v. The word "knowingly," in an indictment

charging the proprietor of a saloon with unMcCraith, 2 Wash. T. 112, 3 Pac. 838; Bahn

lawfully and knowingly permitting a minor to sen v. Gilbert, 55 Minn. 334, 56 N. W. 1117. gamble therein, in violation of Laws 1901, p. No such application was made by the appel

19, c. 3, § 3, punishing the proprietor of a salant, although the court had made the same

loon where gambling is carried on, who permits

a minor to gamble therein, is surplusage. omission in a memorandum opinion filed [Ed. Note.-For cases in point, see Cent. Dig. in the cause during its progress, to which the vol. 27, Indictment and Information, $ 259.) appellant had filed numerous specific objec- 5. GAMING - OFFENSES — LIABILITY OF EMtions without mentioning the failure to refer PLOYER FOR ACTS OF EMPLOYÉS.

Under Laws 1901, p. 19, c. 3, § 3, punishto the tax title, which could hardly have es

ing the proprietor of a saloon, where gambling caped notice.

is permitted, for permitting any minor to gamble The appellant claims that there was error

therein, and the statute providing that the act in allowing interest on the sum found to be

of the employé shall be the act of the proprietor,

the proprietor of a saloon, where gambling is due the defendant under the terms of the permitted, is liable for the act of his employé, trust, on the ground especially that "he can

though he has no knowledge thereof, and though make no profit of his office.” The claim of

the employé acts contrary to instructions.

6. SANE-EVIDENCE-SUFFICIENCY. Hamilton was for services in obtaining deeds Where, on the trial of the proprietor of a of the property to himself, and not for any- / saloon for permitting a minor to gamble there, thing done after he became trustee. The

in the evidence showed that a roulette wheel

was in the saloon, that a third person was opertrial court found that at a certain date he

ating it, that a minor played thereon, and a had done all that he had agreed to do for the witness testified that he believed he saw a appellant in relation to the property he held

barkeeper there, and accused failed to testify

that the third person was not his employé, the in trust, except to convey that property to it,

jury were warranted in finding that the employés and that he was ready and offered to make of the proprietor permitted the minor to gamble. conveyance on the compliance by it with [Ed. Note.-For cases in point, see Cent. Dig. the terms of tbe trust, and on that state of

vol. 24, Gaming, &$ 291-298.] facts found, we think correctly, that he was

7. Save. entitled to interest on the compensation he

Where, on the trial of the proprietor of

a saloon for permitting minors to gamble therewas to receive from the time it became due. in, in violation of Laws 1901, p. 19, c. 3. $ 3, Armijo v. Abeytia, 5 N. M. 533, 25 Pac. 777; . , ;

the evidence showed that a roulette wheel was 22 Cyc. 1495.

in the saloon, that it was operated by a third

person, and that a minor played thercon, and Judgment sustained.

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 MILLS, C. J., and PARKER, POPE, and employés, and submitted the question as to McFIE, JJ., concur. MANN, J., having tried whether the offense was committed by employés, the case below, did not participate in this de

an instruction based on the view that the third

person was not an employé was properly recision.


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