No. 80-283 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

GENERAL ELECTRIC SUPPLY COMPANY, 

DIVISION OF GENERAL ELECTRIC COMPANY, 

A CORPORATION, 

Plaintiff and Appellant, 

GARY V. BENNETT and HAROLD E. GERKE, et al. , 

Defendants and Respondents. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, Montana 

Honorable Diane Barz, Judge presiding. 

Counsel of Record: 

For Appellant: 

Fred N. Dugan, Billings, Montana 

For Respondents: 

Stacey & Jarussi, Billings, Montana 

Submitted on briefs: January 8, 1981 

Decided: April 15, 1981 

Filed: BQR 1.5 1981 

II I 

Y P Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Plaintiff General Electric Supply Company (General 

Electric) appeals from the order and judgment entered by the 

District Court of the Thirteenth Judicial District, Yellowstone 

County, granting summary judgment to the defendants (owners) 

after cross-motions for summary judgment had been made. The 

order and judgment invalidate General Electric's mechanic's 

lien on certain property of the defendants. The sole issue 

involved in this appeal is one of law: Is the description 

of the subject property, which description is contained in 

the notice of lien filed with the county clerk and recorder, 

legally sufficient to identify the property for purpose of 

enforcing the lien? We hold that the order and judgment of 

the District Court should be reversed, and summary judgment 

should be entered in favor of appellant General Electric. 

The appeal has been submitted on an agreed statement 

of facts. The quotes which appear in the following description 

of facts are taken from that agreed statement. 

The owners caused a building to be constructed on their 

following-described property: The South 90 feet of Lot - 9, 

Block 1, of Valley View Acres Subdivision, in the City of 

Bill-ings, Yellowstone County, Montana. 

General Electric sold electrical supplies to the electrical 

subcontractor on the job. On February 23, 1978, and within 

90 days after the last of the electrical materials was 

supplied, General Electric filed a notice of its mechanic's 

lien with the county clerk and recorder. 

"The notice states that the reputed owners of the 

lands and premises and the office building located thereon were Gary V. Bennett and Harold E. 

Gerke, d/b/a Bennett & Gerke, that the reasonable 

value of the building materials furnished by claimant was in the sum of $14,173.37, and that the 
property to be charged with the lien is the 'office 

building' located on Lots 7 and 8 in Block 1 of 

Valley View Acres Subdivision and the lands 'hereinbefore described on which said building is situated'. The invoices attached as exhibits to the 

notice each referred variously to the applicable 

charges as for: 'Bennett Office Building'; 'Bennett 

Office'; 'Bennett'; or 'Bennetts'. As emphasized 

above, the building was actually located on Lot 9 

not Lots 7 and 8." Agreed Statement in Lieu of 

Record on Appeal, p. 2. 

Thereafter a portion of the supplies was returned to 

General Electric unused. The remaining supplies, in the 

amount of $10,586.18, were actually used in the construction 

of the building. The owners substituted their bond in the 

remaining amount so as to discharge the lien on the property. 

"Suit on the bond in the manner of foreclosure of 

Mechanic's Lien but reciting the substitution of 

the bond was commenced on February 7, 1979 naming 

as defendants the owners, the prime contractor, 

the subcontractor and the bonding company . . . After the filing in bankruptcy by the subcontractor, 

his trustee in bankruptcy was substituted in his 

place and default was entered against the trustee. 

The defendant owners answered counterclaiming for 

the cost of their bond premium and cross-complaining 

against the prime contractor, Mora, for any judgment 

plaintiff might sustain . . . [Tlhe issues concerning Mora, the prime contractor were severed 

for consideration after trial or determination of 

the issues between plaintiff and the defendant 

owners and bonding company on their respective motions for summary judgment." Agreed Statement in 

Lieu of Record on Appeal, p. 3. 

The owners and bonding company moved for summary judgment, and filed a brief in support of the motion. General 

Electric also moved for summary judgment, and filed a brief 

and supporting affidavits. The owners did not file any 

affidavits in support of their own motion, and did not file 

affidavits or a brief in opposition to General Electric's 

motion. 

"The matter was then submitted to the Court upon 

cross motions for summary judgment. Thereafter 

the Court entered its Order granting the defendants' 

motion for summary judgment and denying plaintiff's 

motion. A pre-judgment hearing was held in which due 

proof was made of defendants damages by way of bond 

premium cost and of the reasonable value of their 
attorney's fees, whereupon summary judgment for the 

defendants was entered from which this appeal is 

taken." Agreed Statement in Lieu of Record on Appeal, 

pages 4-5. 

This appeal is taken upon cross-motions for summary 

judgment. We agree that there is no genuine issue as to any 

material fact, but we hold that the District Court erred in 

granting summary judgment to the owners. General Electric 

is entitled to a judgment as a matter of law, and not the 

owners. Rule 56(c), M.R.Civ.P. 

Section 71-3-511(1), MCA, prescribes the necessary 

steps to be followed in acquiring a mechanic's lien: 

"How to perfect lien. (1) Every person wishing to 

avail himself of the benefits of this part must file, 

with the county clerk of the county in which the 

property or premises mentioned in 71-3-501 is situated and within 90 days after the material or machinery aforesaid has been furnished or the work or labor 

performed, a just and true account of the amount due 

him, after allowing all credits, containing a correct 

description -- of the property --- to be charged wigh -- such 

lien, verified by affidavit, -- but any error or mistake 

-- in the account or description -- does not affect the 

validity ----- of thelien if the property -- can be identified 

-- by the description. The paper containing the account, 

description, and affidavit is deemed the lien. When 

there is an open account between the parties for labor, 

material, or machinery, such lien may be filed within 

90 days after the date of the last item in such account and include all items and charges contained 

therein for material or machinery furnished for, or 

work performed on, the property on which the lien is 

claimed." (Emphasis added.) 

The above statute and its emphasized portion have been 

construed by this Court many times. This Court has uniformly 

held that the requirements of the mechanic's lien statutes 

as to procedure will be strictly enforced. Once the procedure 

has been fulfilled, the statutes will be liberally construed 

so as to give effect to their remedial character. Federal 

Land Bank of Spokane v. Green (1939), 108 Mont. 56, 62-63, 

90 P.2d 489, 491-492; Western Iron Works v. Montana Pulp & 

Paper Co. (1904), 30 Mont. 550, 558, 77 P. 413, 416. 
The property to be described and to which the lien attaches is the building or improvement itself. ~arco-~ruden 

v. Nelson (1979), - Mont. , 593 P.2d 48, 50, 36 St.Rep. 

704, 706. Based upon the above-stated rule of liberal 

construction, this Court has held that "if the description 

of the building itself is sufficient to enable a person 

familiar with the locality to point it out as the only one 

corresponding with the description contained in the lien, it 

meets all the requirements of the statute . . .I' VarcoPruden v. Nelson, supra; Midland Coal & Lumber Co. v. Ferguson 

(19211, 61 Mont. 402, 405, 202 P. 389, 390. 

In seeking to determine if a party familiar with the 

locality can identify the property from the description, 

"whether a given description is sufficient or not depends 

upon the surrounding circumstances, the character of the 

particular building, its situation with reference to others, 

etc." Midland -- Coal & Lumber - Co., 61 Mont. 406, 202 P. 390. 

Although the statutes extend the lien on the structure 

to the land itself, the land need not be described. Section 

71-3-514, MCA; Federal --- Land Bank of Spokane, 108 Mont. 64, 

90 P.2d 492. Often, a description of the land is included 

so as to further identify the particular structure. MorrisonMaierle, Inc. v. Selsco (19801, - Mont. - , 606 P.2d 1085, 

1087, 37 St.Rep. 299, 301; Midland -- Coal & Lumber - Co., 61 Mont. 

405, 202 P. 390; Western Iron Works, 30 Mont. 556, 77 P. 416. 

In cases where the legal description of the land contained errors, this Court stated that "if, by rejecting what 

is erroneous in the description contained in the lien, 

enough remains to identify the particular property sought to 

be charged, the lien will be upheld." Caird ~ngineering 

Works v. Seven Up Gold Mining Co., Inc. (1941), 111 Mont. 
471, 479, 111 P.2d 267, 272; Midland Coal & Lumber Co. v. 

Ferguson, supra. 

Under the statutes, the accounts and statements filed 

with the notice of lien form part of the lien itself, and 

can be used for further aid in identifying the building sought 

to be charged. Section 71-3-511(1), MCA; Morrison-Maierle, 

Inc. v. Selsco, supra; Federal --- Land Bank of Spokane, 108 Mont. 

63-64, 90 P.2d 492. 

The purpose of requiring notice of the lien to be filed 

is to protect all parties dealing with the property, including 

innocent third parties and subsequent purchasers. MorrisonMaierle, Inc. v. Selsco, supra; Western -- Iron Works, 30 Mont. 

557, 77 P. 416. This Court will construe the adequacy of 

the description more strictly against the lien claimant 

where third parties are involved than where only the owners 

themselves are involved: 

"The same rule of construction would certainly not 

apply in a case where the result affected the interest of an innocent purchaser for value, whose 

rights might have been prejudiced by a lack of full 

description, and one which affected only the interest 

of the owner whose land has been enhanced in value 

by the lien claimants, and who is presumed to know 

its location." Caird Engineering Works v. Seven Up 

Gold Mining Co., supra, 111 Mont. 481, 111 P.2d 273. 

See also Blose v. Havre Oil & Gas Co. (1934), 96 

Mont. 450, 466-467, 31 P.2d 738, 744. 

Turning now to the facts of this appeal, we note first 

that only the lien claimant and the owners of the property 

are involved. No third party has been misled to his detriment by the incorrect description. Therefore, the owners' 

argument that third parties might have been misled is unpersuasive, and the owners themselves could not have been 

misled by the incorrect description. 

The notice of lien describes the structure itself as an 

"office building" and the invoices attached as exhibits 
describe it as "Bennett Office Building", "Bennett Office", 

"Bennett", and "Bennetts" . Omitting the incorrect portion 

of the legal description, the building is described as being 

located on Block 1 of Valley View Acres Subdivision in 

Billings, Yellowstone County, Montana. 

The following is a pertinent portion of General Electric's 

exhibit "C" showing the location of the lots in question: 

The affidavits and photographs submitted in evidence by 

General Electric show only two commercial buildings on Block 

1, the Royal Fork restaurant building (obviously not an 

office building) and the Bennett office building. This 

evidence is not controverted or rebutted by the owners, and 

Mont. is therefore taken as true. Swecker v. Dorn (1979), - I 

593 P.2d 1055,1058, 36 St.Rep. 844, 847. The uncontroverted 

evidence forms a proper basis for summary judgment. Rule 

56 (e) , M.R.Civ.P. 
Using only the correct portions of the description contained in General Electric's notice of lien, and using the 

account statements which form part of the lien for further 

aid in identification, the building subject to the lien is 

described as the "Bennett Office Building" located on Block 

1 of Valley View Acres Subdivision of Billings, Yellowstone 

County, Montana. Considering the uncontradicted evidence, 

it is clear that a person familiar with the locality could 

identify the property subject to the claim of lien. The 

description contained in the notice of lien is sufficient to 

allow lien foreclosure. Any question in this regard is 

eliminated by the presence of the owners as the only parties 

involved and the absence of innocent third parties. 

We reverse the judgment of the District Court, and 

remand the case for entry of judgment in favor of General 

Electric Supply Company. 

We concur: 

Chief Justice \