No. 12563 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

WILLIE FIGGINS, d/b/a 

FIGGINS & SON EXCAVATING, 

Plaintiffs and Respondents, 

LESLIE B. STEVENSON and 

MARILYN R. STEVENSON, 

husband and wife, 

Defendants and Appellants. 

Appeal from: District Court of the Eighteenth Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record : 

For Appellants : 

Bennett and Bennett, Bozeman, Montana 

Lyman Bennett, 111 argued, Bozeman, Montana 

For Respondents: 

Bolinger and Wellcome, Bozeman, Montana 

Page Wellcome argued, Bozeman, Montana 

Submitted : December 4, 1973 

Decided : Djr~ 8 1973 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a judgment for plaintiff entered 

after findings of fact and conclusions of law were made by the 

court sitting without a jury. Trial was had in Gallatin County, 

the Hon. W. W. Lessley presiding. The judgment was in the amount 

of $12,175.75, plus interest at 6% from July 1, 1972, and for 

attorney fees in the amount of $2,435.15. 

The case involves foreclosure of a mechanic's lien by 

the plaintiff, respondent and cross-appellant, upon campground 

premises owned by defendants, appellants. On April 20, 1972, 

plaintiff, Willie Figgins, d/b/a Figgins & Son Excavating, entered into a written contract with defendants Leslie B. Stevenson 

and Marilyn R. Stevenson, for the construction of a United Campground near Bozeman. Hereinafter the parties will be referred 

to as Figgins and Stevenson. 

The contract was for a fixed price of $19,474.75 and 

included waterline excavation and backfilling, powerline digging 

and backfilling, road blading, gravel and a lagoon. Separate 

contractors were, under separate contracts, to do plumbing, electrical and building so that completion of Figgins' work was dependent on completion by the other contractors. The sewage 

lagoon, covered by the contract, was deleted deducting an amount 

of $5,800 from the fixed price leaving a balance of $13,674.75. 

The contract provided that work was to commence as soon 

as the ground was unfrozen. It then provided in pertinent part: 

"If the work is not substantially completed on 

May 27, 1972, then the Contractor shall be charged 

liquidated damages in the amount of $50.00 per 

day for each and every day that the completion 

date exceeds May 27, 1972. 

"The Contractor acknowledges that the Owner is 

relying upon the above stated completion date 

as a material inducement for his entering into 

this Contract. I' 
Then as to payment the contract provides: 

"Final payment 

"Final payment, constituting the entire unpaid 

balance of the Contract Sum, shall be paid 

by the Owner to the Contractor ten (10) days 

after Substantial Completion of the Work, provided the work has then been completed, the 

Contract fully performed, and a final Certificate for Payment has been issued by the * * * 

Owner. Final payment will be made as provided 

for hereinabove provided the Contractor furnishes 

the Owner with a mechanic's lien waiver for all 

labor and materials furnished the project by the 

Contractor and his suppliers." 

Under miscellaneous provisions are two other pertinent provisions 

in the contract: 

"8.3 The actual staking of the road, roadways, 

waterlines, sewer line, electrical line, lagoon 

location and septic location shall be done by 

Survo, Inc. (formerly Earl R. Best & Associates) 

on or before April 15, 1972. 

"8.5 The Contractor shall not be responsible 

for any liquidated damages as provided herein 

if there is any delay resulting from the staking 

of roads, and lines (defined herein) or result 

from the delay of other subcontractors failure 

to cooperate with the Contractor herein." 

The contract was prepared by Stevenson through his lawyer 

in Minnesota. It was a printed standard form of agreement between 

owner and contractor with certain items stricken and other items 

typed in. 

On August 3, 1972, Figgins filed a lien against Stevenson's property in the amount of $14,019.75 for labor, equipment 

and materials. On August 10, 1972, a complaint to foreclose 

the lien was filed. Pursuant to section 45-513, R.C.M. 1947, 

Stevenson filed a cash bond as a substitute and had the lien 

discharged. The suit continued against the bond. On September 

19, 1972, an answer was filed, alleging that Figgins failed to 

complete the work on time, and counterclaimed, alleging that a 

breach of the contract in failing to complete the work on time 

resulted in loss of rentals and damage in an amount of $4,000; 
and further, that Figgins' negligence caused damage to Stevenson's building in an amount of $1,500. 

Trial was had before the coupt sitting without a jury. 

The dourt found in summary: (1) that Figgins completed the 

work in the amount of $13,674.75 and that no additional work 

was done at the instance of Stevenson; but was done at the instance of another building contractor who had a contract with a 

subsidiary of Stevenson to build a building for Stevenson on the 

same premises; (2) that no damage to the building was proven by 

Stevenson; (3) that Figgins did not complete the work on time 

and owed penalty of 31 days at $50 per day for a total of $1,550, 

and (4) attorney fees were owed to Figgins. 

Thus the court found a net amount due Figgins of $12,175.75 

with interest from July 1, 1972, plus attorney fees. 

The issues asserted by Stevenson are four: 

(1) That the court erred in foreclosing the lien. 

(2) That attorney fees were improper and should have 

been allowed to Stevenson. 

(3) That interest was improper. 

(4) That damages, rather than the contractual penalty 

should have been allowed to Stevenson and further that the evidence showed damage to his building caused by Figgins. 

Figgins cross-appeals, claiming that the contractual 

penalty of $50 per day should not have been assessed against him 

under the evidence since, although his completion was late, the 

cause of the delay was the other subcontractors and Stevenson. 

First of all, in his reply brief, Stevenson charges 

that the cross-appeal of Figgins is not properly before the 

Court since Figgins did not file a separate notice of appeal 

under Rule 4, M.R.App.Civ.P. Suffice it to say that ~iggins as 

respondent did, in his answering brief, set forth clearly his 
cross-appeal. Rule 14, M.R.App.Civ.P., provides that this 

Court may review any ruling against respondent and reverse or 

affirm according to the substantial rights of the respective 

parties. Accordingly, a cross-appeal by respondent's brief is 

sufficient to put the issue before this Court. 

As to issue No. 1, the thrust of Stevenson's argument 

is that since the contract specified, under the payment provision 

heretofore quoted, that payment was not due until (a) "final 

Certificate of Payment has been issued by the * * * Owner", and 

(b) lien waivers were furnished by the contractor; then those 

two matters are conditions precedent to payment being due. Under 

that argument, apparently Stevenson would have us believe that 

so long as he never issued a certificate he would not be required 

to pay. Obviously that is incorrect. 

As to the requirement of lien waivers, from Stevenson's 

testimony it is clear that Figgins completed the work in a satisfactory manner, but Stevenson claimed deductions for contract 

over-run and alleged damage to a building. Stevenson knew the 

amount claimed due by Figgins under the contract plus extras; 

and he, together with his attorney, entered into settlement negotiations prior to the lien being foreclosed. In July, prior to 

the filing of the lien, Stevenson wanted to pay $5,000 on the 

contract in exchange for lien waivers. Figgins refused, insisting on the full amount. 

That lien waivers can be a condition precedent is clear. 

Franklin v. Schultz, 23 Mont. 165, 57 P. 1037; Riddell v. P.-W. H. 

& V. Co., 27 Mont. 44, 69 P. 241; Clifton-Applegate-Toole v. 

Drain Dist. No. 1, 82 Mont. 312, 267 P. 207. However, where 

Stevenson refused to pay the contract balance and there was a 

dispute as to the amount due and owing under the contract, the 

rule does not apply. If Stevenson had offered to pay the contract 
price, the rule would apply. Figgins would then have been 

obligated to furnish the lien waivers. 

Stevenson also argues that before a lien can be valid, 

the contract amount must be proven. In support he cites: Greene 

Plbg. & Heating Co. v. Morris, 144 Mont. 234, 395 P.2d 252; 

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

133 Mont. 273, 322 P.2d 323; and Harsh Mont. Corp. v. Locke, 134 

Mont. 150, 328 P.2d 926. Those cases are not in point in the 

instant case. Here, Stevenson admitted an amount of over $10,000 

was due. An overstatement of the amount due, absent fraud or bad 

faith, does not invalidate a lien. (See Hammond v. Knievel, 141 

Mont. 433, 378 P.2d 388; and Duval v. Fuchs, 141 Mont. 123, 375 

P.2d 541, where an exaggeration by ten times was held to be fraud.) 

Thus the lien was valid. It follows that attorney fees 

were proper. Stevenson does not contest the amount of the fees; 

only whether they are proper. Thus, issue No. 2 is answered. 

Issue No. 3, interest having been allowed from July 1, 

1972, we feel needs no discussion, since once the validity of the 

lien is established and the date of the completion of the contract 

established, under the circumstances here, the running of interest 

started. 

Issue No. 4, that damages other than the contractual 

penalty of $50 per day should have been allowed will be discussed 

with the cross-appeal of Figgins. The district court allowed 

Stevenson a penalty of 31 days at $50 per day. The court based 

this on the fact that the contract completion date was May 27, 

whereas Figgins did not finish until June 28. 

Under the contract provision heretofore quoted as paragraph 8.5, the contractor was not responsible for liquidated 

damages if the delay resulted from staking, delay of other subcontractors' failure to cooperate. 
Here, the staking to be done under paragraph 8.3 heretofore quoted was not done. Stevenson explained this failure by 

saying that he, Stevenson, did the staking himself although he 

admitted he was not a surveyor nor engineer. Witnesses for 

Figgins testified that there was no adequate staking. At best 

a conflict in evidence was presented. But, it was more than a 

mere conflict in reality because Stevenson never had the staking 

done as he agreed. 

Moreover, Stevenson admitted that the lagoon was eliminated, 

the location of the well changed, the well and plumbing by a 

separate subcontractor delayed. It followed that Figgins could 

not complete his work of backfilling until those items were done. 

The natural consequence of those matters was that Stevenson, who 

really superintended the whole job as his own contractor, was as 

much the cause of delay as were other subcontractors. Stevenson 

argues that since the contract language reads "failure to cooperate" and no testimony in the literal sense of those words was 

offered, no showing was made of reasons for the delay past May 27. 

As we review the record, the opposite is shown, and we hold the 

district court was in error in finding any penalty due. We 

therefore hold that Figgins is entitled to relief on his crassappeal. It follows then that appellant Stevenson's issue No. 4 

on damages is not meritorious. 

By what has been heretofore said, we affirm the judgment 

of the district court and modify it to include $1,550 and further 

attorney fees on this appeal in the amount of $500. The cause 

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