Hill v. Alliance Building Co.

Citations

• 6 S.D. 160
• 60 N.W. 752
• 1894 S.D. LEXIS 140

Syllabus

<p>1. The statute by which a mechanic’s lien is created was designed to protect material men, contractors, and laborers; and although in derogation of the common law, its provisions should be liberally construed, to the end that tho intention of tho legislature may be realized, and substantial justice done to all a,fleeted by its provisions.</p> <p>2. In the absence of an agreement or anything indicating an intention to the contrary, a mechanic or material man does not waive his right to file and enforce a lion by merely accepting for the amount of his claim the promissory note of the owner, at his instance and request, and for the sole purpose of suspending his right to foreclose such lien for 60 - days, at which time such note, according to its terms matures.</p> <p>8. Neither will the mere assignment of such note operate as a waiver or extinguish the lien, nor prevent the assignee thereof from obtaining a decree of foreclosure, provided he has the note, and offers to surrender the same at the trial for cancellation.</p> <p>4. A material man who liquidates the amount of his claim by taking the note of the owner, as disclosed by the record in this case, and transfers the same under an agreement created by his blank endorsement, which binds him to pay the note if the maker fails, still retains an interest in the debt, that entitles him to file in his own name, a valid claim for a lien, provided it is done within the time limited by statute; and such lien, when.assigned to, may be foreclosed by, the assignee and holder of the note.</p> <p>5. A claimant who has taken the owners note for the amount of his claim should surrender the same for cancellation before a decree of foreclosure is entered; but the production of such note is excused when the undisputed evidence shows that the same was unavoidably lost while in the hands of an attorney for collection, and no demand for indemnity under the statute was made or suggested by the maker of the note, or any one claiming u