No. 80-395 INTHE SUPREME COURT OF THE STATE OFMONTANA 1981

WILLIAMS BROS. CONSTRUCTION, Plaintiff and Respondent,

GEORGE E. VAUGHN and KATHRYN M. VAUGHN, Defendants and Appellants.

Appeal from: DistrictCourt of theTenth JudicialDistrict, Inand forthe County of Fergus, The Honorable Leroy McKinnon, Judge presiding.

Counsel of Record: For Appellant: Leonard H. McKinney, Lewistown, Montana

For Respondents: Parrish, Icnopp & 0'Ilare, Lewistown, Montana

Submittedon Briefs: May 8, 1981 Decided: 

## 3

# -1981

JUL'3 

## @I31 Filed:Mr. JusticeGene B. Dalydelivered theOpinion of theCourt. In the spring of 1977 George Vaughn, defendant hereinafter, purchased a brick home located on Plum Creek in Fergus County, Montana. Hisplan was tomove the house to northwest Lewistown and have 

### it relocated on a foundation. In May of 1977 defendant entered into a written contract with Zion Building Contractor tomove thehouse. On June 7, 1977, defendant entered into a written contract with Williams Brothers Construction, plaintiff hereinafter, whereby plaintiff would furnish all materials and perform alllabor necessary to complete the foundation and basement for a totalpriceof $7,000. At the outset defendant wished to have the house placed on a completed foundation constructed of eight foot concrete walls. However, afternumerous discussionsbetween theparties 

### it was determined that 

### itwould be toeveryone's benefit if the foundation was constructed after the house

was moved and placed over the excavation. The parties also decided thatthe foundationcould not be totallyconstructed out of concrete and that the remainder would be done with masonry block. Since plaintiff did not do masonry work, 

### it

was 

### its understanding thatportion of theprojectwould have to be subcontracted. The written contra-ct was orally modified toadhere tothe adjustments. The house was moved to the site on August 5, 1977, and work on the foundation commenced shortly thereafter. Plaintiff worked on the foundation through October 

### 4, 1977. Soon thereafter defendant made arrangements with a third party to have the foundation completed which included work contracted to be done by plaintiff. Plaintiff concludedthat 

### its obligation under the orallymodified contract was terminated and didno additionalwork. On January 3, 1978, plaintiff filed 

### its lien against defendant's property in the amount of $4,852 for work done. On August 15, 1978, plaintiff filed 

### its complaint for foreclosure of the lien. On October 6, 1978, defendant answered and counterclaimed, alleging that plaintiff failed to complete the basement, abandoned the contract, and asked for damages in the amount of $5,046.25. On April 24, 1979, plaintiff amended 

### its complaint to include contract and quantummeruit counts. On January 9, 1980, the matter was tried by a jury. By stipulation, the issue of attorney feeswas reserved for determinationpursuant tothe verdict. Attheconclusion of plaintiff's case and at the conclusion of all testimony, defendant made motions to dismiss which were denied. The jury rendered a verdict infavor of plaintiff on the lien in the amount of $4,582. Pursuant toa hearing, attorney fees and costs were awarded to plaintiff in the amount of $3,683.16. Defendant appealsfrom theverdict. On appeal defendant contends theDistrictCourt erred in failing to dismiss the action on motions made by defendant. Defendant argues that plaintiff re1ied upon a written contract as a basis for asserting 

### its mechanics' lien. The plaintiff failed tosubstantiallycomply with the contract and, therefore, 

### is not entitled to claim benefits of themechanics' lien. Plaintiff, on the other hand, contends that the written contract was orally modified; that the lien was filedpursuant to that final agreement; and further that a

### mechanics' lien may apply to that work completed under a contract which has been modified and recovery had on a guantummeruit basis. In denying defendant's motions for a directed verdict, the District Court determined therewas a question of fact which should be decided by the jury. It 

### was the jury's function todetermine if the actionwas based on the written contract, as defendant alleges, or the orally modified contract, as plaintiff contends. Thejury found in favor of plaintiff; and, after reviewing the record, we 

### agree. Plaintiff filed and perfected 

### its mechanics' lien in accordance with 

### sections71-3-501 etseq., MCA. 

### Thepurpose and nature of mechanics' liens are enunciated in Smith v. Gunniss (1943),115Mont. 362, 144P.2d 186, which states: "Under our statutes, the right of a mechanic or a materialman to a lien on property upon which he has supplied work, labor or materials is 

### not dependent upon whether the contract with the owner of the 

### property is 

### written or oral or whether it 

### is 

### express or imp1ied

# . [Citation omitted.

### 1 Our lien statutes are remedial. They are for the expresspurpose of providing for the payment of the claims of builders, mechanics and materialmen out of the property to which their work and material have contributed an increased value. For these reasons, this court has long been committed to the view that the lien statutes should be given full effectand thatthey should receivea liberal construction sothattheobjectsand purposes of such statutes may be carried out. [Citationomitted.

### 1 'This lien [mechanics'

## I is a creature of the statute, and was not recognized atcommon law. It may 

### be defined tobe a claim created by law for thepurpose of securing a priority of payment of the price and value of work performed and materials furnished in erecting or repairing abuilding or other structure, and as such it 

### attaches totheland aswell asthebuildings erected thereon. 15Amer. & 

### Eng. Enc. Law, 5. NOW, 

### it 

### is 

### not the contract for erecting or repairing the building which creates thelien, but 

### it 

### is the use of the materials furnished and the work and labor expended by the contractor, whereby the building becomes a part of the freehold, that gives the materialman and laborer his lien under the statute. The lien

### isbrought inoperationby virtue of the statute, and the contract for building 

### is entered into presumably in view of, or with reference to, the statute.

## ' Van Stone v. Stillwell & Bierce Mfg. Co., 142 U.S. 128, 12 S.Ct. 181, 183, 35 L.Ed. 961, 964

# . .." 144P.2d at189-190. In defendant's counterclaim he alleges plaintiff breached the contract by failing to complete the work as contracted. The record indicates, however, that plaintiff completed a portion of the work as contracted. It was defendant's procurement of a third party to finish the foundation which prevented plaintiff from fulfilling 

### its obligation under the contract. Gunniss furtherholds: "'One who prevents or makes impossible the performance or happening of a condition precedent upon which his liability by the terms of a contract 

### is made to depend cannot avail himself of 

### its non-performance. In other words, he who prevents 

### a thing from being done shall never be permitted toavail himself of the non-performance which he himself has occasioned.' 12 Am.Jur., sec. 329, p. 885. "'The abandonment of an improvement before the completion thereof, by the owner of the premises, without fault on the part of the contractor, does not abrogate the right of the contractor, laborers, and materialmen to mechanics' liens for the value of the work done and the material furnished. In such case, the building or improvement 

### is to be deemed completed, so far as the rights of persons to assert liens 

### is concerned.' 36 Am.Jur., 

### sec. 35, p. 38." 144P.2d at191. The verdict and judgment of the District Court are affirmed.

### We concur: 

# a J-IA, K'd 

## WNLJ4- Chief 

### Justice