No. 81-81 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

CLIMATE CONTROL COMPANY, 

INC., a Corporation, 

Plaintiff and Appellant, 

BERGSIEKER REFRIGERATION INC . , et al., 

Defendant, Respondent and ThirdParty Plaintiffs. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead 

Honorable James M. Salansky, Judge presiding. 

Counsel of Record: 

For Appellant: 

S. Y. Larrick, Kalispell, Montana 

For Respondent: 

Hash, Jellison, OIBrien and Bartlett, Kalispell, 

Montana 

Murphy, Robinson, Heckathorn and Phillips, 

Kalispell, Montana 

Submitted on briefs: October 9, 1982 

Decided: February 1, 1982 

Filed: FE5 I -1982 

q5!iiaw // 0:. K!*, w Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

Climate Control brought an action for debt and for 

foreclosure of a mechanic's lien. Following a motion for 

summary judgment, Climate Control presented an extensive 

written offer of proof with proposed exhibits. The District 

Court of Flathead County awarded summary judgment to Arrowhead, Inc., holding that Climate Control did not create or 

have a valid mechanic's lien, and Arrowhead, Inc., was 

awarded reasonable attorney's fees and costs of suit to be 

determined by the District Court. We affirm the holding 

that a valid mechanic's lien was not created. 

The key issue which determines the case is whether the 

District Court erred in holding that the claimed mechanic's 

lien was invalid because the affidavit in the claim of lien 

was not legally sufficient. We will briefly refer to the 

other issues which are not controlling. 

Climate Control is a distributor of airconditioning 

equipment. Bergsieker is a dealer in airconditioning equipment. Climate Control entered into an agreement with 

Bergsieker for the sale of various airconditioning equipment 

to be installed by Bergsieker in the Outlaw Inn owned by 

third party defendant, Arrowhead, Inc. 

Climate Control contends it received no payment from 

Bergsieker for such equipment furnished to the Outlaw Inn, 

and contends there is in excess of $30,000.00 owing. On 

November 6, 1974, Climate Control filed a claim of lien and 

statement of account in the office of the Flathead County 

Clerk and Recorder. In pertinent part, the claim of lien 

and statement of account said: 
"That Climate Control, Co., Inc., a Washington 

corporation duly authorized to transact business 

within the State of Montana, did, between September, 1973 and the 7th day of August, 1974, 

furnish certain cooling and heating equipment 

and supplies and related and associated materials 

. . . That there is due, owing and unpaid to 

this claimant the sum of $29,868.00 on account 

of the equipment, supplies and materials so 

furnished. . . 

"That a statement of account of said equipment, 

supplies and materials is hereto annexed as 

exhibit 'A' and by this reference made a part 

hereof. . . 

"That the sum of $29,868.00, together with 

interest at the legal rate is now justly due 

and owing to this claimant after allowing all 

offsets and credits. . . (a description of 

real properties included)." 

The verification by affidavit stated in pertinent part: 

"State of Montana ) 

1 SS. 

"County of Flathead ) 

"Donald J. LaPlante, being first duly sworn 

deposes and says: That he is the Treasurer of 

Climate Control Company, Inc., the claimant 

named in the foregoing claim of lien and statement of accounts; that said account contains 

a just and true account of the amount due said 

claimant for equipment, supplies and materials 

furnished, after allowing all credits and offsets; 

that said claimant's statement contains a correct 

description of the property to be charged with 

said lien; and ---- that- all ofp the facts stated in 

said - - - - - - claim - - - - - and statement ----- are true to the best 

-- of his knowledge, information and belief." 

(Underscoring added. ) 

Attached to the claim are copies of invoices from Climate 

Control. From the invoices it appears that various described 

equipment was furnished between September, 1973 and August 

7, 1974. The filing date of November 6, 1974, is the 91st 

day following the stated final date for furnishing of airconditioning equipment. Section 71-3-511, MCA, requires 

that a mechanic's lien be filed within 90 days after the 

materials have been furnished. 

In ruling on the motion for summary judgment by defendant, 

Arrowhead, the District Court concluded that summary judgment 
should be entered inasmuch as Climate Control's notice of 

lien was not filed within 90 days of the end of the period 

in which the notice asserts that the materials were furnished, 

that the notice was not amended within the time period 

during which a lien could be filed, and that the affidavit 

incorporated in such lien is not legally sufficient, and, 

therefore, stated in its judgment: 

"1. That Arrowhead is awarded summary judgment 

that plaintiff (Climate Control) did not create 

a valid lien and does not have a lien against 

the described real property. 

"3. Arrowhead is entitled to reasonable attorney's fees and its costs of suit to be paid 

by plaintiff Climate Control and court reserves 

jurisdiction to conduct a hearing to determine 

such fees." 

The issue as to the sufficiency of the affidavit attached 

to the mechanic's lien claim is determined by Saunders CashWay, etc. v. Herrick (1978), 179 Mont. 233, 587 P. 2d 947. 

Climate Control attempts to distinguish Saunders by arguing 

that the affiant did positively state that the account 

contains a just and true account of the amount due and that 

it also contains a correct description of the property, 

which are the essential requirements under section 71-3-511, 

MCA. A careful reading of the verification answers this 

contention. It is true that the affiant states that the 

account contains a just and true account and that the statement 

contains a correct description of the property. However, 

those positive statements are qualified by the last portion 

of the verification in which the affiant stated: ". . . - and 

---- that all of the facts stated -- in said claim and statement are 

------ true to the best of his knowledge, information and belief." 

That qualifying statement clearly limits the preceding 

"positive" statements so that we must determine the sufficiency 
of a verification which states that the facts are true to 

the best of an affiant's knowledge, information and belief. 

Saunders is directly comparable to the present case. 

The verification in Saunders, which was determined by this 

Court to be insufficient, stated in pertinent part: 

". . . that the matters and things therein 

set forth are true (to the best) of his 

knowledge, (information and belief)." 

With the exception of the use of parenthesis, which is not 

significant, the wording is almost identical to the verification 

in the present case. 

In explaining why a positive affidavit is essential, 

this Court in Saunders, 179 Mont. at 236, 587 P.2d at 949, 

stated: 

"Such a requirement is necessary because of 

the extraordinary right imposed by the mechanic's 

lien. Once the lien is perfected, it has priority over any prior lien, encumbrance or mortgage 

upon the land. Section 45-506, R.C.M. 1947. 

[Now 71-3-502 (3) , MCA. ] This extraordinary 

claim should not be placed on the property of 

another unless the facts out of which the lien 

arises are vouched for on oath by some person 

who knows them to exist. Globe Iron Roofing & 

Corrugating Co. v. Thatcher (1889), 87 Ala. 458, 

6 So. 366, 367. The sanction of perjury insures 

the veracity of the statements made by the person with knowledge. Thus a test of the sufficiency of the affidavit to a mechanic's lien 

is whether perjury is assignable upon the verification to it. Gregg v. Sigurdson (19231, 67 

Mont. 272, 215 P. 662, 663." 

In pointing out that the verification statement was 

not equivalent to a declaration under oath that the matter 

is true, this Court in Saunders, 179 Mont. at 237, 587 P.2d 

at 949, stated: 

"This Court has stated 'that an affidavit 

so worded is in no sense equivalent to a declaration under oath that the matter contained therein is true.' Rogers-Templeton Lumber 

Co. v. Welch (1919), 56 Mont. 321, 184 P. 838, 

840. If the items contained in the statement 

were in fact false, R. A. Saunders could not 

be charged with perjury based on the verification as it is worded." 
This Court in Saunders further emphasized that a verification 

must also be considered from the standpoint of the rules of 

evidence to determine if it meets such standards. The Court 

stated at 179 Mont. at 237-238, 587 P.2d at 949-950: 

"The verification is insufficient in another 

respect. When a lienor asks the Court to enforce a mechanic's lien and foreclosure, the 

lienor is asking the Court to impose an extraordinary right upon the property involved. 

The lienor asks the Court to take such action 

based upon the complaint and accompanying 

affidavit as proof of the existence of the 

lien. Thus the complaint and affidavit in 

this situation 'must be considered from the 

standpoint of evidence and tested by the 

rules of evidence, rather than those of pleading and practice.' Benepe-Owenhouse Co. v. 

Scheidegger (1905), 32 Mont. 424, 80 P. 1024, 

1026. See, Fisk Co. v. Lanstrum (1934), 

96 Mont. 279, 30 

"This consideration is particularly relevant 

in the present situation where the parties 

submitted stipulated facts to the District 

Court, including the notice of the lien and 

supporting affidavit, and upon this proof 

asked for a decision. If the allegations 

contained in the notice and affidavit are 

made positively and sworn to as of the 

affiant's own knowledge, there is no apparent reason why they may not convince a court 

of their truth. Benepe-Owenhouse Co. v. 

Scheidegger, supra. 'If the allegations, 

however positively made, are sworn to only 

upon information furnished to the affiant 

by some third person, then they are merely 

hearsay, and ought not to have been given 

any evidentiary value, for the evidence necessary to move the [court] must be legal evidence.' Benepe-Owenhouse Co. v. Scheidegger, 

supra. I' 

As in Saunders, it cannot be ascertained here from the 

affidavit of Mr. LaPlante what portion of the facts is declared 

upon his own knowledge, what portion upon information 

furnished from other sources and what sources those might 

be, what portion is upon his mere belief, and what portion 

may be a deduction from facts and circumstances as they 

appeared to him. Such an affidavit is insufficient and will 

not support a claim for a mechanic's lien. 
Climate Control submitted an extensive offer of proof 

which included facts claimed to support their contention 

that equipment had been furnished within the 90 days prior 

to the filing of the claim of lien so that the error in date 

contained in the lien claim should not be enforced against 

them. While the facts and the law might justify a court in 

disregarding such an error in date, because of our holding 

on the verification question, this matter will not be considered. 

We affirm the summary judgment for the defendant, 

Arrowhead, Inc. 

We Concur: