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Show THE DAILY PAGE FOUR Mortgages 796 Jos V Arohibeque etux to Beneficial Fin; $4,896. 797 Gao T Kukuchka al Fin etux to Benefici- $3,240. 808 Barry L Kenyon etux to 1st See B; $2,178.54 813 Gary C Merritt etux to United Mortgagee; $185750. 830 David James Cramer etux to United Mortgagee Ser; $12,000. 633 Kaye E Green to United Mortgagee $10,350. Phil 859 to Prud McGrath etux Fed Sax; $7,020. Probate Court James AHDERSOIJ, Arnell John Probate of 'will A. T. Diainant Wallace HYAii, I.r. T. II. Jensen i'f.vid H. Barton Probate of Will LhAL, Boy S. SIMF3UH, Dwight L. Probate of Will I. H. Biele Prank Prolate of Will Van Hilda Mae Probate of Will & Rcnney PRAIiCZ, ;?els on Sidney Wesley Probate of Will Conder Ilielson ?x)bert R. ESSEX, Letters of Sr, Admr. Ei-l- e Jcr.es & Murphy Letters of Admr. Financing Statements 211157 - LaMar B Wms 123? East Hunt Road, sic to Zions 1st Nat Bk; Ftim, hh gds 211161 - Marilyn G 3978 So 5375 W,slc Region FCUj Boat A to Earl m B Dimond Western - N David 211164 Kenpner 38 00 South 900 East, sic to Budget In A Fin Plan; Guns 211165 - Marcella Prosser 978 Garfield Axe, sic to Fidelity Industrial Cred Co; hh gds 211166 - Horst Selpel A Florence Seipe 801 Simpson Axe, sic to Cent Thrift A In Cb; In flic Supreme Court Of The State Of Utah A. A. Maycoik, 1 Flamtilt a t id Appellant, General Inrm.ir.i e Company of America, E, W. Hartmann and ".on r-- General i .1 FILED July 8, 1970 Company of ,11a e ; No. 11986 Company, end Respondents. - l)et-n.- America and Skyline Construction Cumpny Cios Claimants ard Third- Party Plainnffs, , v. K. W. a nr W i 1 1 D urges entitlement. Under the facts here we believe replacing the controls was a substitution to cure an error. It was somewhat akin to replacing or repairing an overloaded or defective fuse box. This seems impelling since no charge for labor or material was hinted even. We subscribe to the principles and cases cited in U. S. for State Electric v. Hesselden, decided in our own Federal Circuit Court (10th Cir. 1958; 404 F. 2d 774) under the similar Miller Act (40 U. S. :.i 1:. !. i. ! . i rd HLNRiOl'. 'Ii T .mH 1ft lemlanr, pr.il 1 ,i m-inr- i rt v lief end.r nt . are constrained to and WE CONCUR: :.. f 'ill- Iftpurer performance do affirm the trial court's findings, conwas done in the Wilcox case. as clusions and judgment here, We 1 -- 1 I Code 270). Maycock relies quite heavily on Wilcox v. Cloward, 88 Utah 503, 56 P. 2d (1936) in support of its position, quoting extensively frem some of its lengthy language, much ot which is dictum. That case does distinguish, however, between performance of the contract and mere replacement or repair, as does the Hesselden case, supra. In the Wilcox case, where there was contradictory evidence, it was held that on familiar principles ol appellate review, the trial court's finding that putting shingles on a roof was part of a contract to build a house, would not be disturbed. The court did not hesitate to note, however, that in a proper case, "where a contract to furnish materials is to be regarded as completed, a subsequent gratuitous furnishing of material in the nature of a substitution or replacement to remedy a defect in the material originally delivered, will not operate to extend the time within which to claim a mechanic's lien." It is difficult to understand, why that case, with such concession, should be cited by Maycock, rather than in support of the instant case. I I men L. M. Cummings, Clerk Hart mar: 1., Ct 0 s - $13,504.94. Neither did the November letter, only document urged as being a notice of claim, comply with the statute the like of which, uniformly, is required to be followed strictly. It would be to compound the original error of delivering the wrong material by duplicating it with an equally fatal error of failing to give the required statutory notice as to time of delivery being some time other than June, 1966, stated in such letter. The failure to follow the statute was in no way cured by testimony of any witness that delivery was made at any time other than stated in the notice, the document upon which the prime contractor and the insurer, under the facts, should have been able to rely. This, though Skyline conceded receiving a claim by certified mail on November 14, 1966, but for an entirely different amount. It 13 interesting to note that over a year later, at time of suit, on motion for summary judgment, Maycock still claimed the identical $13, 509. 54 i. claimed immediately upon delivery of the material in June, 1966, "supplied by him (Maycock) for which said claim is made" under the wording of the statute by which he 1 v. Skyline all invoices sent were for the same amount, $13, 504.94. Such demands consistently were made on Hartmann in June, July, August, September and October. This demand for the identical amount, $13,504.94, was made by plaintiff in a letter directly to Skyline, the prime contractor, on November 17, 1966, after Hartmann had defaulted in its payment to plaintiff, detailing its claim, and saying "the tabulation below indicates equipment furnished including shipping dates, and invoice prices on mechanical equipment furnished on subject job. " The last shipping date was stated as being in June, 1966, and no claim was made for materials furnished thereafter. The defendants refused to pay the claim made on November 17, 1966, for the reason that it was not made in accordance with the statute within 90 days after the last material was furnished. Plaintiff, nearly a year later, on October 2, 1967, instituted this action to recover from Hartmann, Skyline and General Insurance Co. In addition, however, the facts just do not justify the enforcement of this claim, - purely statutory in nature. The only claim made by Maycock that might require Skyline and General Insurance to respond under the statute was the letter of November 17, mentioned above, which made no claim whatever for materials furnished in October or up to November 7th, the date that at best MAycock claims that even the erroneously installed controls were replaced without charge or claim of any other nature. Maycock again relies on its own error when it claims this letter was a mistake. It is rather significant, however, that even if it were in error, the amount it claimed therein was identical to that claimed and billed in June, 1966, Cott, Bagley JOIiES, The error was not detected until the following October. Maycock strictly was a materialman, with no obligation to install the boiler, that being Hartmann's obligation. After discovery of the error it was decided that the boiler could be used by installing new and different controls. Such controls, apparently because of the wrong delivery, were furnished free of charge by Rite, and were installed in October and allegedly up to November 7, 1966, by a Servco Co. , not Maycock or Rite. The charge was paid by Rite who had made the error. There was no billing or statement rendered for additional parts, and Maycock contends that the replaced controls were nothing more nor less than a delivery of materials called for under the contract. This is not so. It was a replacement of materials that Maycock, through its own mistake and that of its vendor, erroneously delivered in breach of its own contract. It would seem to be a novel principle that would permit one to employ his own error and breach to gain an extension of time to recover under a statute that otherwise would have barred him had he kept his covenants. This circumstance in and of itself seems to be dispositive here. Provate of Will K'JPP, TUESDAY, JULY 21, 1970 Maycock contends that the last materials called for under the prime contract were furnished in October, and that the 90 days within which a claim and notice thereof must be made and given in order tc recover on the performance bond or from the prime contractor, was given in November, well within the statutory provision, and that suit was filed within the statutory one year. Defendants and the trial court think otherwise ar.d so do we. Letters of Admr. Joel K. Allred ECOiJlGGII, RECORD 1 uni .1 summary judgment of no ( ftu of 1951 having action in a case in-.- 1 to do with material J. Allan Crockett, Chief Justice Utah Code Annotated ir. connection with public, construction projects, where .ire required. Affirmed with costs to defendants. E. R. The .it ig. nits, though paraphrasing the facts differently in their briefs, do not i;n-ato disagree with the accuracy' or pertinency of each's recital. Callister, Jr. , Justice i o'ylme was the prime contractor on a school job. It furnished a performance bond executed by General Insurance Co. pursuant to tbe statute. Its contract, among other things, called for a Rite Engineering Co. boiler, which it contracted to obtain f rum irt minn, subcontractor, who in turn ordered it lrom the plaintiff Maycock, sub subcort ractor, who is the appellant here. The latter ordered the boiler from Rite, who by mistake sent it to a Texas outlet, sending the one meant for Texas to the Utah job. It arrived in March, 1966, was installed in or about June, 1966. The boiler and everything physically connected with it had been biTled to Hartmann mi May 9, 1966. 1 R. L. Tuckett, Justice 1 -- A. H. Kllett, Justice 1. Neither brief makes any rcieiV'nce as to where sucTfcTdirn appears in the record. |