No. 12331 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

FRANCIS TINDALL , 

Plaintiff and Respondent, 

OLAF NEGAARD and PHYLLIS E. NEGAARD, 

his wife, 

Defendants and Appellants, 

and 

VERNE MCWILLIAMS and LARRY MCWILLIAMS , 

Defendants. 

Appeal from: District Court of the Tenth Judicial District, 

Honorable LeRoy L. McKinnon, Judge presiding. 

Counsel of Record: 

For Appellants : 

Leonard H. McKinney argued, Lewistown, Montana 

For Respondent : 

Robert L. Johnson argued and William E. Berger, 

Lewistown, Montana. 

Submitted: March 1, 1973 

Decided : MAR 1 4 

Filed : 14 1975, 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

'This is an appeal from a judgment for plaintiff entered on 

findings of fact and conclusions of law of the district court of 

the tenth judicial district, County of Fergus, after trial by the 

court without a jury. Judgment was for $2,800,25, the full amount 

prayed for and attorney fees were assessed as for a foreclosure 

of a lien. 

Plaintiff Francis Tindall was in the ready mix concrete 

business and furnished materials used upon defendant ~egaards' 

premises. Negaards are husband and wife and will be referred to 

herein as Negaard. The other two named defendants are Verne 

McWilliams and Larry McWilliams. However, this appeal affects 

only the rights between Tindall and Negaard. Larry McWilliams 

was served but defaulted. Verne McWilliams was never found nor 

served. 

The district court found as facts, so far as pertinent here: 

a) That plaintiff furnished materials to the order of Vern 

McWilliams and delivered them to the property of Negaard at intervals during the period May 20 to July 9, 1968. 

b) That plaintiff furnished materials to the order of 

Larry YcWilliams and delivered them to the property of Negaard at 

intervals during the period from September 11 to September 26, 1968. 

c) That Negaard had a written contract with Verne McWilliams 

co make certain improvements. 

d) That Verne and Larry McWilliams are father and son, 

and that they did work together; that in fact they worked together 

on the Negaard job from May 20 through July 9, 1968. 

e) That a mechanic's lien was filed on December 26, 1968. 

The district court concluded as a matter of law that the 

Lien was valid, and judgment should be entered. 

The issues raised by appellant Negaard are: 
1. Plaintiff failed to sustain the burden of proof necessary to establish a valid lien capable of being foreclosed, 

2. The conclusion of law that plaintiff had a valid lien 

was erroneous in that the court allowed tacking of two separate 

contracts to create a valid lien. 

3. That a proper finding and conclusion would result in 

a dismissal of the lien suit. 

Negaard contracted, in writing, with Verne to build a 

foundation for a trailer house.Verne did the job, ordering and 

receiving the concrete from Tindall. Tindall billed Verne. 

Verne was paid in two payments by Negaard, one in cash on July 10 

and the other by check on July 26,1968. On the receipt dated 

July 26, 1968, signed by Verne, it is noted '"d in full". 

Verne did not make any payments to Tindall for the concrete 

or other materials. At that time, the accounts of Tindall showed 

due and owing from Verne the sum of $991.50 for materials delivered 

to the Negaard job. 

On September 11, 1968, Larry ordered and received concrete 

at the Negaard property. Larry continued to receive concrete until 

September 26. Larry was billed by Tindall, Larry did not pay for 

any of the concrete. Larry had made an oral contract with Negaard 

to build a slab around a fish house. He also poured and finished 

a sidewalk at the trailer house where his father Verne had done the 

work from May to July. Negaard paid Larry in two payments, $1500 on 

September 28, and $1400 on October 18,1968. 

We have said heretofore that Tindall billed Verne and Larry 

separately. They had separate addresses. On October 31, 1968, 

Tindall combined the two accounts in the total amount of $2800.25 

and billed Verne and Larry PicWilliams, Contractors. Also, at about 

this time, for the first time, Tindall called Negaard informing him 

that he had not been paid for the concrete. 

Regarding the oral contract found by the trial court to have 

existed between Negaard and Larry McWilliams, Negaard testified that 
he contacted several people, and Verne McWilliams got the bid to 

build the slab around the fish house. Verne, however, then asked 

Negaard whether his son Larry could do the job. Negaard agreed 

and Larry did the job. 

Appellant, Negaard, attempts in his brief to show that the 

last materials were delivered on September 24 under the proof. 

He then argues that since the lien was not filed until December 26, 

that it was not timely under section 45-502, R.C.M. 1947, because 

it was not filed within 90 days of furnishing the last item in 

such account, We have examined the record carefully and find 

there is substantial credible evidence to uphold the trial court's 

finding that September 26 was the last date of delivery. 

However, the problem remains whether there was one account 

or two accounts. The trial court found two separate contracts as 

shown above, but then went on to find that Verne and Larry were 

father and son, often worked together, and did work together 

between May 20 and July 9. Based on this alone, the trial court 

"tacked" the two jobs together, 

Section 45-502, R.C.M. 1947, discusses perfection of liens 

in terms of accounts. Clearly here, the records of Tindall handled 

Verne and Larry in two distinct individual accounts, Not only 

were they kept separate by name, but the addresses on the ledger 

sheets were different. Thus we have, as the trial court found, two 

distinct contracts; and as the record clearly shows, two separate 

and distinct accounts, 

The earlier account of ~erne's was complete and the last 

item furnished on July 11, so that a lien filed on December 26 was 

ndt timely and to this extent the judgment is in error. 

However, appellant argues that if part of the items for 

which the lien was filed are invalid, the entire lien fails and is 

void. He predicates this theory on this argument expressed in his 

brief : 

"~indall's testimony clearly reveals he made no 

effort to ascertain any differences. He never made 
inquiry of Negaard or either of the McWilliams 

concerning the relationships involved. He always 

billed the contracts individually yet when it comes 

time to assert a lien right, he arbitrarily changes 

his treatment of these two contractors, bills them 

jointly as if a partnership for the first time on 

October 31, 1968 and on this basis files his single 

lien on December 26, 1968. This indicates a delibateness of mind and purpose on the part of Tindall 

to attempt to validate the entire account through 

the filing of a single lien. 11 

Appellant cites Duval v. Fuchs, 141 Mont, 123, 127, 375 

P.2d 541, where the Court said: 

"The rule in Montana as elsewhere is well-settled 

that a willful and knowing exaggeration of the 

amount due will void an otherwise valid mechanic's 

1 lien. Of course, if fraud is shown in the filing, 

the lien is vitiated. for fraud cuts down evervthinpl' . Eskestrand c. Wunder, 94 Mont. 57, 20'~. 2d 

622. 

In Duval, an exaggeration in amount of some ten times appeared 

and fraud was specifically found by the trial court. 

In the instant case, there was no fraud found. In fact, 

the trial court found that the relationship of father and son, 

being together on the job, having worked together on other jobs, 

and Negaard having ordered concrete once by telephone plus other 

facts, put as much duty on Negaard as on Tindall. Negaard never 

bothered to check materialmen, even though he admitted to having 

previous experience with Liens. Also, no dispute as to the amount 

of material delivered or price appears here. 

We conclude, as the trial court did in effect, that no 

willful or knowing exaggeration exists here. Thus the rule that 

where the lien includes nonlienable items the proof limits the 

recovery. See: Cole v. Hunt, 123 Mont. 256, 211 P,2d 417; 

Hammond v. Knievel, 141 Mont. 433, 378 P.2d 388; Caird Engineering 

Works v. Seven-Up Gold Mining Co., 111 Mont. 471, 111 P.2d 267. 

We hold then that the lien is valid as to the materials 

furnished to Larry McWilliams. The judgment on the materials 

furnished Verne McWilliams is set aside. The matter is returned 

to the district court for entry of judgment in accordance herewith. 

One further issue is involved, Attorney fees were awarded 

on the basis of the recovery amount. It is obvious that attorney 
fees will need reconsideration by the district court since the 

new judgment involves a lesser amount. For consideration of this 

matter, attention of the district court is called to Luebben v. 

Metlen, 110 Mont. 350, 100 P.2d 935; Thompson v. Cure, 133 Mont. 

273, 322 P.2d 323; and Section 93-8614, R.C.M. 1947, 

Since the judgment is reversed in part and returned to 

the district court for modification, under Montana Rules Civil 

Appellate Procedure, Rule 33, each party shall bear its own costs 

on appeal. 

/ Chief Justice