Pacific Lumber & Timber Co. v. Dailey

Citations

• 60 Wash. 566
• 111 P. 869
• 1910 Wash. LEXIS 1099

Syllabus

<p>Mechanics’' Liens — Time of Filing — Evidence—Sufficiency. In an action to foreclose a mechanics’ lien, a finding that lumber was not delivered until after the 17th is not warranted by the evidence, where the teamster’s receipt was dated that day, and there was evidence that it was made out on the day of delivery and was signed by the contractor; and such written receipt is not overcome by oral evidence of the contractor, sixteen months later, that he was of the impression that the lumber was all laid before that day, supported .by his foreman to the same effect, who quit work on the 18th, their testimony resting on memory.</p> <p>Appeal — Review-—Findings. On appeal in an equity case, the supreme court is not bound by the findings of the lower court, especially where written evidence conflicts with oral testimony resting on memory, as there is a trial de novo on appeal.</p> <p>Mechanics’ Llens — Waiver—Burden of Proof. The burden of showing a waiver of a mechanics’ lien, by clear, certain and unequivocal evidence, is upon the party asserting it.</p> <p>Mechanics’ Liens — Waiver—Evidence—Sufficiency.- A waiver of a mechanics’ lien, conditional upon giving a mortgage subject only to a mortgage of $1,200, cannot be enforced where either the minds of the parties did not meet, or the property was subject to three mortgages aggregating more than that sum, and no tender of performance was made.</p>