Knibb v. Mortensen , 89 Wash. 595 ( 1916 )

Bausman, J.

Plaintiff, agreeing in writing to build the Mortensens their dwelling for $1,061, deposited a certified check for $300 to secure his good performance. The Mortensens paid him $818, and admit that they owe, and they now tender, $259, which includes a trifling extra. Knibb, claiming many more extras, invoked an arbitration clause on that feature, but received an award of only $247.25. He then filed a mechanics’ lien for substantially twice what the arbitrators allowed him and the $300 deposit besides, or, in exact figures, $814.95. The lower court allowed him in the present foreclosure of the lien only $100 more than the arbitrators had allowed him.

The respondent owner contends that the whole lien is bad because of its containing an obvious and wilful excess. That contention we must sustain. The $300 was clearly no ingredient under our statute, and the lower court had to throw out, besides, other foreign items. There was no time when this plaintiff could honestly have thought himself entitled to more than half of what he claimed in his notice of lien. His claiming more was wilfully unfair, for it was done after the award of the arbitrators, whose decision he does not repudiate and yet will not adopt, and which, moreover, he uses in his complaint and in his argument here to put the other side in the position of waiver on sundry features.

In Robinson v. Brooks, 31 Wash. 60, 71 Pac. 721, we held that wilful excess would vitiate the whole lien, and in Gilbert Hunt Co. v. Parry, 59 Wash. 646, 110 Pac. 541, Ann. Cas. 1912 B. 225, we reached the same conclusion, where the excess was very great though without evidence of bad intent. These lien laws tend to burden the sale of property. They must be claimed in good faith. The law will not, indeed, punish the lienor for trifles included, or even for large sums which are fairly debatable in law. But it will not allow an obvious misuse of the statute. This contractor has burdened a little dwelling with twice as much as he had a right to claim by lien, and, in our opinion, he did it wilfully out of an ill humor which is exhibited in sundry features of the record. Where excessive items are claimed, the defendant owner has the right to his trial by jury, which the plaintiff here has avoided by proceedings under lien.

The cause will be reversed, with instructions that the action be dismissed without prejudice to a suit at law by the plaintiff upon the same subject-matter.

Morris, C. J., Main, Holcomb, and Parker, JJ., concur.