No. 80-395 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

WILLIAMS BROS. CONSTRUCTION, 

Plaintiff and Respondent, 

GEORGE E. VAUGHN and KATHRYN M. 

VAUGHN, 

Defendants and Appellants. 

Appeal from: District Court of the Tenth Judicial District, 

In and for the 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 

Submitted on Briefs: May 8, 1981 

Decided : 3 - 1981 

JUL '3 @I31 

Filed: 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

In the spring of 1977 George Vaughn, defendant 

hereinafter, purchased a brick home located on Plum Creek in 

Fergus County, Montana. His plan was to move 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 to move the house. On June 7, 

1977, defendant entered into a written contract with 

Williams Brothers Construction, plaintiff hereinafter, 

whereby plaintiff would furnish all materials and perform 

all labor necessary to complete the foundation and basement 

for a total price of $7,000. 

At the outset defendant wished to have the house 

placed on a completed foundation constructed of eight foot 

concrete walls. However, after numerous discussions between 

the parties it was determined that it would be to everyone's 

benefit if the foundation was constructed after the house 

was moved and placed over the excavation. The parties also 

decided that the foundation could not be totally constructed 

out of concrete and that the remainder would be done with 

masonry block. Since plaintiff did not do masonry work, it 

was its understanding that portion of the project would have 

to be subcontracted. The written contra-ct was orally 

modified to adhere to the 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 concluded 
that its obligation under the orally modified contract was 

terminated and did no additional work. 

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 

quantum meruit counts. 

On January 9, 1980, the matter was tried by a jury. 

By stipulation, the issue of attorney fees was reserved for 

determination pursuant to the verdict. At the conclusion of 

plaintiff's case and at the conclusion of all testimony, 

defendant made motions to dismiss which were denied. The 

jury rendered a verdict in favor of plaintiff on the lien in 

the amount of $4,582. Pursuant to a hearing, attorney fees 

and costs were awarded to plaintiff in the amount of 

$3,683.16. Defendant appeals from the verdict. 

On appeal defendant contends the District Court erred 

in failing to dismiss the action on motions made by 

defendant. Defendant argues that plaintiff re1 ied upon a 

written contract as a basis for asserting its mechanics' 

lien. The plaintiff failed to substantially comply with the 

contract and, therefore, is not entitled to claim benefits 

of the mechanics' lien. 

Plaintiff, on the other hand, contends that the 

written contract was orally modified; that the lien was 

filed pursuant 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 

guantum meruit basis. 

In denying defendant's motions for a directed 

verdict, the District Court determined there was a question 

of fact which should be decided by the jury. It was the 

jury's function to determine if the action was based on the 

written contract, as defendant alleges, or the orally 

modified contract, as plaintiff contends. The jury found in 

favor of plaintiff; and, after reviewing the record, we 

agree. 

Plaintiff filed and perfected its mechanics' lien in 

accordance with sections 71-3-501 et seq., MCA. The purpose 

and nature of mechanics' liens are enunciated in Smith v. 

Gunniss (1943), 115 Mont. 362, 144 P.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 

imp1 ied . [Citation omitted. 1 Our lien 

statutes are remedial. They are for the 

express purpose 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 

effect and that they should receive a liberal 

construction so that the objects and purposes 

of such statutes may be carried out. 

[Citation omitted. 1 'This lien [mechanics' I 

is a creature of the statute, and was not 

recognized at common law. It may be defined 

to be a claim created by law for the purpose 

of securing a priority of payment of the 

price and value of work performed and 

materials furnished in erecting or repairing 

a building or other structure, and as such it 

attaches to the land as well as the buildings 

erected thereon. 15 Amer. & Eng. Enc. Law, 

5. NOW, it is not the contract for erecting 

or repairing the building which creates the 
lien, 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 is brought in operation by 

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 . . ." 144 P.2d at 189-190. 

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 further holds: 

"'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 to avail 

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 material men 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." 144 P.2d at 191. 

The verdict and judgment of the District Court are 

affirmed. 
We concur: 

a J-IA, K'd WNLJ4- 

Chief Justice