{ "id": 2807981, "name": "BLUEHER LUMBER COMPANY, a New Mexico corporation, Plaintiff-Appellant, v. Thomas E. SPRINGER and Cynthia J. Springer, his wife, Defendants-Appellees", "name_abbreviation": "Blueher Lumber Co. v. Springer", "decision_date": "1967-02-13", "docket_number": "No. 8141", "first_page": "449", "last_page": "453", "citations": [ { "type": "official", "cite": "77 N.M. 449" }, { "type": "parallel", "cite": "423 P.2d 878" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "240 F.2d 778", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 419936 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/f2d/240/0778-01" ] }, { "cite": "73 N.M. 47", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321463 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/73/0047-01" ] }, { "cite": "74 N.M. 320", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2800947 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/74/0320-01" ] }, { "cite": "70 N.M. 332", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2850768 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/70/0332-01" ] }, { "cite": "38 N.M. 506", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559064 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/38/0506-01" ] }, { "cite": "39 A.L.R.2d 394", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "73 N.M. 64", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320505 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/73/0064-01" ] }, { "cite": "70 N.M. 182", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2852399 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/70/0182-01" ] }, { "cite": "57 N.M. 540", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842380 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/57/0540-01" ] } ], "analysis": { "cardinality": 384, "char_count": 6330, "ocr_confidence": 0.656, "pagerank": { "raw": 1.7721354016208776e-07, "percentile": 0.7122606375892957 }, "sha256": "2f05a1bba3c21123050ac7d54588a0e0f682481dc6e9690a0d638d453945b27b", "simhash": "1:7b808f25d5e9f93e", "word_count": 1038 }, "last_updated": "2023-07-14T20:38:38.028708+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MOISE and COMPTON, JJ., concur." ], "parties": [ "BLUEHER LUMBER COMPANY, a New Mexico corporation, Plaintiff-Appellant, v. Thomas E. SPRINGER and Cynthia J. Springer, his wife, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWOOD, Judge, Court of Appeals.\nPlaintiff appeals from the judgment entered at the close of plaintiff\u2019s evidence, which discharged its materialman\u2019s lien and dismissed its complaint. Seven points are relied on for reversal. Two are dis-positive. They are (1) whether plaintiff\u2019s proof was sufficient to establish its claim of lien and (2) whether the judgment at the close of plaintiff\u2019s evidence was proper.\nDefendants contracted with Anthony J. Garcia to construct a residence on their lot. During the time Mr. Garcia was building the house for defendants, he was building houses for two other people. During this construction Mr. Garcia maintained a construction shed on defendants\u2019 lot.\nMr. Garcia ordered materials for the three jobs from plaintiff. Plaintiff kept Mr. Garcia\u2019s account on ledger sheets showing the date, invoice number and the amount charged to Mr. Garcia. The ledger sheets did not identify the job for which the materials were furnished.\nMr. Garcia\u2019s account not . being paid, plaintiff filed a claim of materialman\u2019s lien for $4,609.84. The claim is based on invoices which are in evidence as plaintiff\u2019s exhibits 2 through 9. $2,000.00 having been paid by defendants, plaintiff brought suit for $2,609.84 and asked that the lien be foreclosed to satisfy the claimed indebtedness.\nThe evidence shows that plaintiff furnished the materials and that it furnished them to Mr. Garcia. However, under \u00a7 61-2-2, N.M.S.A.1953, the lien is for \u201cfurnishing materials to be used in the construction. * * * \u201d\nWhat proof is needed to meet this statutory requirement? Tabet v. Davenport, 57 N.M. 540, 260 P.2d 722; Home Plumbing and Contracting Co. v. Pruitt, 70 N.M. 182, 372 P.2d 378 and Allsop Lumber Co. v. Continental Casualty Co., 73 N.M. 64, 385 P.2d 625, contain statements to the effect that there must be proof of actual use. Plaintiff contends that such proof is not required. The Tabet and Allsop cases also refer to proof that the materials were sold for use in the particular building or project. Thus, there must be proof that plaintiff furnished the materials for use in defendants\u2019 house. Unless there is such proof, we do not reach the question of actual use.\nPlaintiff asserts that proof that the materials were sold for use in defendants\u2019 house may be made in either of two ways: (I)by proof of delivery of the materials to the liened property or (2) by proof that the materials were furnished for use in defendants\u2019 house. These views are discussed in the annotation appearing at 39 A.L.R.2d 394.\nAssuming, but not deciding, that proof of the lien may be made as asserted by. plaintiff, we examine the evidence to determine if such proof was made.\nEach invoice had a notation as to where the material shown on the invoice was to be delivered. The delivery instruction for exhibit 2 is Lot 84; the delivery instructions for the other exhibits is Lot 82. Defendants own Lot 82.\nThe testimony as to actual delivery is as follows: Mr. Cecil Contreras delivered the materials itemized on exhibits 3, 4, 6 and 8. He didn\u2019t know whether he delivered the materials to defendants\u2019 lot or some other lot. He delivered to \u201call them houses,\u201d to where the building was going on, to where Mr. Garcia or his carpenter told him to deliver it. Mr. Eulalio Contre-' ras \u25a0 delivered the materials listed on exhibits 5 and 9. He -delivered the material, to the construction shed. Mr. Perea delivered the material shown on exhibit 7 to the construction shed. - There is-no evidence showing where the material listed, on exhibit 2 was delivered.\nEven if the materials delivered to the construction shed may be deemed to have been delivered to defendants\u2019 lot, there is no evidence that the material itemized on the remaining exhibits was so delivered. The $2,000.00 paid by defendants exceeds the total for materials delivered to the construction shed. Therefore, the trial court correctly ruled that there was no evidence to show delivery of materials to defendants\u2019 lot which would support a lien for the claimed balance of $2,609.84.\nThe materials were furnished to Mr. Garcia who was building three houses, only one of which belonged to defendants. Plaintiff\u2019s ledger did not attribute the material to a particular house. After the materials had been furnished to Mr. Garcia, a meeting was held seeking an agreement allocating the invoices to the three jobs. The testimony conflicts as to whether agreement was reached. The trial court found that the materials were not segregated according to the lot or improvement on which they were intended to be used. The evidence supports this finding. There was a failure of proof that the materials itemized on the invoices were furnished for use in defendants\u2019 house.\nThere being a failure of proof that the plaintiff furnished materials \u201cto be used in the construction\u201d of defendants\u2019 house, the judgment correctly discharged-; the lien against defendants\u2019 property. It also correctly dismissed the claim seeking personal judgment against the defendants. Allison v. Schuler, 38 N.M. 506, 36 P.2d 519; Home Plumbing and Contracting Co. v. Pruitt, supra.\nThe trial court made findings of fact and conclusions of law and rendered judgment on the merits at the close of plaintiff\u2019s case. Plaintiff asserts this action was error because it had established \u201cat least a prima facie case.\u201d Such action was proper under \u00a7 21-1-1(41) (b), N.M.S.A. 1953; Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824. The trial court was not required to view plaintiff\u2019s testimony, together with all reasonable inferences therefrom in its most favorable aspect for plaintiff. Rather, the court weighs the testimony and applies its judgment thereto. Frederick v. Younger Van Lines, 74 N.M. 320, 393 P.2d 438; Blancett v. Homestake-Sapin Partners, 73 N.M. 47, 385 P.2d 568. \u201cA prima facie case\u201d does not preclude this action by the trial court. Huber v. American President Lines, 240 F.2d 778 (2d Cir. 1957).\nThe judgment is affirmed.\nIt is so ordered.\nMOISE and COMPTON, JJ., concur.", "type": "majority", "author": "WOOD, Judge, Court of Appeals." } ], "attorneys": [ "Oliver B. Cohen, Albuquerque, for appellant.", "Edwin W. Stockly, Los Alamos, for appellees." ], "corrections": "", "head_matter": "423 P.2d 878\nBLUEHER LUMBER COMPANY, a New Mexico corporation, Plaintiff-Appellant, v. Thomas E. SPRINGER and Cynthia J. Springer, his wife, Defendants-Appellees.\nNo. 8141.\nSupreme Court of New Mexico.\nFeb. 13, 1967.\nOliver B. Cohen, Albuquerque, for appellant.\nEdwin W. Stockly, Los Alamos, for appellees." }, "file_name": "0449-01", "first_page_order": 481, "last_page_order": 485 }