This court, in an opinion written by Mr. Chief Justice Beatty, in State v. Foley, 15 Nev. at page 73, 37 Am. Rep. 458, said: "It may be that the tendency of enlightened opinion and of recent legislation in other states and countries is against the rule which absolute ly excludes the testimony of a convict; it may be that it is an unwise and impolitic rule; but it is unquestionably the law of this state. Not only is the common law unaltered by statute in this particular, but in civil practice it is expressly reaffirmed. Comp. L. 1441. This shows that the Legislature approves the policy of the common-law rule, and we cannot hold that it is less essential in criminal than in civil cases; we feel bound, on the contrary, to maintain it as strictly in one class of cases as in the other." This opinion was rendered in 1880. It is significant that at the next session of the Legislature, in 1881, the section quoted was repealed. It is provided by section 5419, Revised Laws, that: "All persons, without exception, otherwise than as specified in this chapter, who, having organs of sense, can perceive, and perceiving can make known their perceptions to others, may be witnesses in any action or proceeding in any court of this state. Facts which, by the common law, would cause the exclusion of witnesses, may still be shown for the purpose of affecting their credibility." There is no provision in the chapter prohibiting persons charged with, or convicted of, a crime, from being called as witnesses. The section just quoted is made applicable to criminal as well as civil actions by section 7451, Revised Laws. In the case of Burgess v. Helm, 24 Nev. 242, 51 Pac. 1025, Mr. Justice Bonnifield, in commenting upon section 5419, Revised Laws, supra, said: "The evident object the Legislature had in view in enacting the above provisions was to abrogate the general common-law rule which rendered incompetent, as witnesses, in an action or proceeding, the parties thereto or persons having a direct interest in its results, except, as provided in certain subsequent sections, among which is section 379, which declares that no person shall be allowed to testify, when the other party to the transaction is dead, or when the opposite party to the action or person for whose immediate benefit the action or proceeding is prosecuted or defended is the representative of a deceased person, when the facts to be proved transpired before the death of such deceased per sons. 999 ing his credibility. We are of the opinion that the court did not err by its ruling. [8] Counsel for defendant, during the cross-examination of the witness Lommori, for the purpose of impeaching him by showing that he had testified contrary to the testimony which he gave upon direct examination, read certain questions propounded to him and answers given by him at a former trial, and asked him if he gave such testimony. During the reading of the former testimony, the presiding judge made the remark: "As far as you have gone and read the testimony into the record, there are apparently no inconsistencies or contradictions." error. This remark by the court is assigned as The Attorney General concedes that it was error for the court to make the remark, but claims that it was harmless. We have read the testimony of the witness Lommori with great care, and are unable to see that there is any substantial conflict between his testimony given on the trial and the testimony given at the previous hearing. This being true, it would seem that the remark of the court was without prejudice. Furthermore, the point on which it was sought to impeach this witness went solely to the question of the identity of the defendant; that is, of connecting him with the crime. To our mind his participation in the crime is clearly shown; there can be no doubt about it. Consequently, it would seem that in any event the remark was harmless. Mr. Chief Justice Talbot, in State v. Mircovich, 35 Nev. at page 490, 130 Pac. at page 766, called attention to our statute, which provides that the court shall disregard technical errors where no substantial rights are denied, and said: murder and other cases, and refused to set aside "This court has often applied this statute in convictions or remand actions for new trials for errors which did not affect the substantial rights of the accused.” On The witness Urie, at the time of the trial in the district court, was under sentence of death for the murder of Mrs. Quilici. cross-examination, counsel for the defendant inquired of this witness if he had talked with the officers of Humboldt county, including the district attorney, and he said he had. Upon the completion of the crossexamination, the following questions were asked by the district attorney and answers given by the witness: We do not see how the Legislature could have used more significant language. What was the intention of the Legislature in making the section in question applicable to criminal cases? This was the first section in chapter 1 of title 11 (page 405) of Compiled Laws of 1873, and section 1441, supra, was the fifth section of that chapter. When "Q. I call your attention to last Sunday evethe attention of the Legislature was called ning, and ask you to state whether you had a conversation with Mr. Woodburn and myself, to section 1441, supra, by the opinion of Mr. here in the county jail. A. Yes, sir; I don't Chief Justice Beatty, it was promptly re- remember what evening it was. Q. Who else pealed; and, in view of the action of the was present at that time? A. Mr. Burke. Q. Legislature in repealing it, we must conclude A. Yes, there was a deputy, I guess; I don't The sheriff? A. The sheriff. Q. Any one else? that the Legislature meant exactly what it know his name. Q. I will ask you to state said, that "all persons, without exception," whether or not at the time you were distinctly should be competent witnesses, and that informed that there would be no consideration of any kind extended to you for testifying in facts which, at common law, would disquali- this case. Mr. Frame: I object to the question fy a witness, might be considered as affect-as incompetent, irrelevant, and immaterial, and for the further reason that it is not proper redirect examination, and that it calls for a conversation, or conversations, that are in no way related to this case. The Court: The objection may be overruled. A. No, none that I remember. Mr. Frame: Note an exception, if your honor please, upon the grounds stated." and other and additional repairs were made at 4. MECHANICS' LIENS 281-TIME FOR FIL- [9] The ruling of the court is assigned as error. It is the contention of the state that the inference from the examination of coun-132.] sel for defendant was that some promise had been made to the witness Urie, and it was the purpose of this examination to rebut that inference. Counsel for the defendant, during the argument on the objection, stated in the presence of the jury: "I did not ask him whether he had received any promises. It is true that inference may be drawn." The court must exercise some discretion in ruling upon such objections. He saw the witness upon the stand and heard him testify, and was in a good position to know just how the cross-examination impressed the jury upon the point in question. We cannot say that the court abused its discretion. The judgment and order denying the motion for a new trial are affirmed, and the district court is directed to fix a time and make the proper order for having its sentence carried into effect by the warden of the state prison. NORCROSS, C. J., and McCARRAN, J., concur. GASTON v. AVANSINO et al. (No. 2182.) [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2432-2435; Dec. Dig. 586. For other definitions, see Words and Phrases, First and Second Series, Negative Testimony.] 2. APPEAL AND ERROR 1011-SCOPE OF REVIEW-CONFLICTING TESTIMONY. Where the testimony of the plaintiff on the trial of an action to foreclose a mechanic's lien was positive that a notice disclaiming liability for the work done was not posted, and the defendant's testimony was equally positive that it was posted, there was such a conflict in the testimony that the determination of the lower court would not be disturbed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec, Dig. 1011.] 132-TIME FOR FIL 3. MECHANICS' LIENS ING. In such case evidence held not to show fraudulent intent in making the final repairs so as to permit filing of lien after it should have expired. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 565-572; Dec. Dig. 281.] 5. MECHANICS' LIENS 281-TIME FOR FIL Evidence held insufficient to show that the as to make invalid a notice filed more than six contract was performed in a certain month, so months thereafter. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 565-572; Dec. Dig. 281.] 6. MECHANICS' LIENS 281-WAIVER-EVIDENCE-SUFFICIENCY. Under the rule that one holding a lien will not be held to have waived it by an ambiguous agreement, evidence held insufficient to show a waiver of a mechanic's lien. Liens, Cent. Dig. 88 565-572; Dec. Dig. Appeal from District Court, Washoe County; Thomas F. Moran, Judge. Action by J. E. Gaston against Mary Avansino, as administratrix of the estate of Louis Avansino, deceased, and others. From the judgment and order denying a motion for new trial, defendants appeal. Affirmed. Mack & Green, of Reno, for appellants. Dixon & Miller, of Reno, for respondent. MCCARRAN, J. This was an action in foreclosure of a mechanic's lien. In the court below judgment was rendered in favor of the lienholder, respondent herein. From the judgment and from an order denying a motion for a new trial, appeal is taken to this court. The labor was performed and the material furnished by respondent at the instance and request of the lessee of the premises of Louis Avansino, deceased. It is admitted that the work was done and the material furnished in bringing about certain alterations and changes in the premises, and was within the knowledge and with the consent of Louis Avansino. Louis Avansino having died since the judgment was rendered in the lower court, Mary Avansino, administratrix of the estate of Louis Avansino, was substituted as party defendant and appellant herein. Where the original contract for the alteration and repair of a building under which a mechanic's lien was sought to be foreclosed con[1, 2] It is the contention of appellant that templated only certain repairs, but there was the court erred in finding the fact that the no time limit during which they should be done, I defendant, appellant herein, did not give no 154 PACIFIC REPORTER (Nev. tice by posting in writing on the premises record discloses the following testimony elicin some conspicious place, stating that he, ited from the respondent, Gaston, a witness the defendant, would not be responsible for in his own behalf: any material furnished or labor done in the alteration and repair of the building. "Q. Now, Mr. Gaston, at the time you entered into this oral contract with Kane, IncorSection 2221 of the Revised Laws, 1912, porated, for alteration repairs to which you have provides: testified, was there any notice posted upon those sino, the owner of the building, would not be repremises anywhere to the effect that Mr. Avansponsible for work done thereon? there was not. posted upon those premises at the time you comA. No, sir; Q. Was there any such notice menced work on the 11th of November, 1912? A. No, sir. Q. Was there any such notice posted there at any time during the month of November, 1912? A. No, sir. Q. Was there any such notice posted upon those premises during the month of December, 1912? Was there any such notice posted upon those premises at any time during the month of JanuA. No, sir. Q. ary, 1913? A. No, sir. Q. Was there any such notice posted upon those premises anywhere during the month of February, 1913? A. No, sir. Q. Was there any such notice posted anywhere upon those premises during the month of March, 1913? A. No, sir. Q. Was there any such notice posted upon those premises anywhere during the month of April, 1913? A. No, sir." "Every building or other improvement mentioned in section 1 of this act, constructed upon any lands with the knowledge of the owner or the person having or claiming any interest therein, shall be held to have been constructed at the instance of such owner or person having or claiming any interest therein, and the interest owned or claimed shall be subject to any lien filed in accordance with the provisions of this chapter, unless such owner or person having or claiming an interest therein shall, within three days after he shall have obtained knowledge of the construction, alteration or repair, or the intended construction, alteration or repair, give notice that he will not be responsible for the same, by posting a notice in writing to that effect in some conspicuous place upon said land, or upon the building or other improvement situate thereon." It was the contention of appellant in the court below that due and sufficient notice was given, by posting in a conspicious place in the building a certain notice testified to by Louis Avansino, Jr. Louis Avansino, Jr., testified that about the 10th or 11th day of November, 1912, he wrote out a notice, signed it with his father's name, and posted the same in a conspicuous place in the building. The testimony of the witness Kirby Unsworth is to the effect that on one occasion he saw the witness Louis Avansino, Jr., with a paper in his hand; that on the paper was what he would term a rough notice in handwriting; that he saw Louis Avansino, Jr., go into Kane's Café, the premises in question, carrying this paper. The witness Unsworth, in attempting to fix the time at which his attention was drawn to the notice in the hand of Louis Avansino, Jr., said: "Q. Can you recall to mind whether or not you accompanied the son from any place to that building for any purpose some time back? A. Last fall, during the noon hour, I met one of the boys, Louis, near Conant's grocery store as I was going out of Conant's, and accompanied him down as far as Kane's Café." The trial of this case took place in June, 1914; and, if the witness' testimony in this respect was correct, the time at which he saw the notice in the hands of Avansino was nearly a year subsequent to the commencement of the work. The witness Louis Avansino, defendant in the court below, as well as the witness Maggilo, testified to having seen the notice posted on a swinging door, a conspicuous place in the premises. It is the contention of appellant that this testimony was not contradicted, except by witnesses who testified that they did not see the notice; in other words, they contend that no positive testimony was given denying the notice. We think the view of appellant in this respect is untenable, inasmuch as the ing worked in the building as a plumber The witness McDermott testified to havduring the month of March, 1913; that he made some search for notice, and saw none at that time. worked in the building during the month The witness Harry Kelly testified that he of November, 1912, and also in January, 1913; that he saw no notice. he worked in the building as a carpenter The witness C. W. Farrington testified that during the month of November, 1912, and as late as May 23, 1913, and that he saw no notice. worked in the building during the months of The witness E. J. Brennan testified that he November and December, 1912; that his work and employment took him all over the building; and that he saw no notice posted. The witness Johnson testified that he workthe month of November, 1912, and saw no ed in the building for several days during notice. during the month of December, 1912, he was to the same effect. nature of the testimony of the witnesses call- Pac. 636; Turley v. Thomas, 31 Nev. 181, the premises and in the alteration and im101 Pac. 568, 135 Am. St. Rep. 667. [3] It is the contention of appellant that the trial court erred in finding that the lien was filed within the time required by law. They contend here, as they contended in the court below, that the work was completed in February, 1913, and that services performed thereafter by respondent were no part of the original contract, but were separate contracts for which separate liens should have been filed, and that the lien notice filed by respondent on August 9, 1913, was not filed within the statutory time. Indeed, from a standpoint of the evidence produced, as well as from a standpoint of the law applicable, this is the closest question presented in the case. It was the contention of respondent in the court below, and testified to, that on the 9th day of November, 1912, he entered into an oral contract with the lessee of the building, to wit, Kane, Incorporated, to furnish labor and material for the alteration, changing, and repair of the building for the convenience of Kane, Incorporated. The terms of the agreement, according to the testimony of respondent, were that respondent was to do the work and furnish the labor and material, and that Kane, Incorporated, was to pay respondent at the rate of $6 per day for his labor, $5 a day for carpenters whom he employed, $2.50 a day for carpenter helpers, $4 a day for brick mason helpers, and $7 a day for brick masons. The testimony of respondent, Gaston, in this respect is as follows: "Q. You say What was the alteration? De scribe that work to be done under that agreement. A. Well, at that time the work that was outlined was rebuilding the dining room, to take out the old kitchen out of the dining room, and take the stairs out of the front and put them in again in the rear, or better than one-third or halfway in the building-they were running the upstairs there-put in a hall from Virginia street to the dining room, and put in the toilets and other conveniences, and put in lunch counters, and put in a front on the building and other alterations, both upstairs and downstairs, and the cellar. Q. And also to supply the materials of that work, were you? A. Yes, sir. Q. And all labor? A. Yes, sir; that is, the carpenters' labor only. Q. The carpenter labor? A. Yes, sir: and the common labor, of course, and the brick masons and brick helpers-those. Q. How was that amount of money to be paid? A. Well, it was to be paid as the work progressed along; to receive payments, and the balance at the completion of the work. Q. When did you begin that work? A. On the 11th day of November, 1912. Q. And you got through, finished it, when? A. On the 21st day of June, 1913. Q. And did you perform all of that contract, all that you agreed? A. Yes, sir. Q. All of the work? A. Yes, sir. Q. Furnished the materials that you agreed to furnish? A. Yes, sir." On cross-examination the respondent, Gaston, testified that the reason for delay in the completion of the work was to suit the convenience of Kane, Incorporated, who was conducting a saloon and restaurant business in the premises. It appears from the record that the labor provement of the building was commenced on or about the 11th day of November, 1912, and that from time to time changes and alterations and improvements other than those contemplated in the original contract were suggested by the lessee of the building. There appear to have been times when no improvements or alterations were being made and when the respondent was not in or about the premises at all; at other times it appears that he was sent for by the lessee and asked to make other changes or alterations or to supply other material; and the last item of service performed or material furnished appears to have been on June 21, 1913, when a screen door was furnished and hung in place by respondent. As we take it from the record before us, all of the work and material went to the common purpose, which common purpose was the object of all parties to the original contract, i. e., the rearrangement and improvement of the premises to suit the business that was to be conducted by the lessee, Kane, Incorporated. T. J. Kane, the original maker of the contract with respondent, in testifying as to the making of the contract and its general terms and nature, and especially referring to the last item of service performed, said: "I had a talk when I called him to put in the screen door, and I thought possibly that he would balk at it, but he didn't. Every time I called him he came to me and done the work, knowing the circumstances; that I could not pay in full. Q. You called him to put in the screen doors like you called him to do the other work? A. I did; yes, sir." It appears that by reason of the several items of service performed and the several items of material furnished in alteration of the building the sum of $1,176 accrued to the respondent under the contract. It further appears that from time to time small sums of money were paid by Kane, Incorporated, to the respondent in part payment of the services already performed; the total of these sums being approximately $636, leaving a balance due and unpaid of $540. record is one of a continuing contract. While In our judgment, the case presented by the it is true that the materials furnished and the services performed were furnished and performed on several different occasions, yet they all went to the one object, namely, the alteration and improvement of the premises to fit the same for the business being carried on by the lessee. It may be true, as indicated by the record, that on one occasion or even on several occasions, the respondent, lien claimant, was not working in or about the premises, and the work commenced up to that time may have been completed, but it would appear that at all times the lienholder was looked to by the lessee for the further carrying out of changes and alterations and improvements in the premises whenever such changes or alterations or improvements ap 154 PACIFIC REPORTER original purpose; and it further appears that The establishment and recognition of mechanic's liens under such conditions has been approved by the courts in more instances than one. In the case of Premier Steel Co. v. McElwaine-Richards Co., 144 Ind. 614, 43 N. E. 878, the Supreme Court of Indiana, in passing upon a case where under the contract the materials were to be supplied from time to time as needed in the making of repairs and improvements extending over a considerable number of months, said: "If each order and delivery of materials during the progress of an improvement constituted a separate contract, and required a separate lien, it will be readily seen that, instead of providing a practical, simple, and efficient method of security to the laborer and materialman, as the statute certainly intends, a complication would arise, requiring many liens or the delivery of all materials at one time, or the performance of all labor by continuous and uninterrupted service." In the case of Smalley v. Gearing, 121 Mich. 190, 79 N. W. 1114, 80 N. W. 797, the Supreme Court of Michigan held that, where a contractor entered into an agreement with the materialman whereby the latter was to furnish all materials of a certain kind for a building without any specific quantity being designated, and such material was delivered to the contractor from time to time, the time for filing a lien claim commenced to run on the last delivery. To the same effect is the case of State Sash & Door Mfg. Co. v. Norwegian Danish E. L. A. Seminary, 45 Minn. 254, 47 N. W. 796. (Nev. by day's wage. The court, in passing upon the case, commented as follows: any new employment. The character of work "In the case at bar there was not in reality was the same, viz., labor and work done on the peculiar character of the work at different mine. The amount to be paid varied with the times.' "It would be a harsh and unreasonable rule of Mining Co., supra, was referred to approving- last discussed is perhaps the closest one pre[4] As we stated at the outset, the question sented by this case, and is one which demands most careful scrutiny. It may be well to observe here that in the record before us it does not appear that the act of respondent, Gaston, in performing the last service, to, wit, the hanging of the screen door on the premises, was done for the purpose or with the intent of extending the time within which he might file his lien for the other service performed or material furnished. There is contended by appellant, that this service was nothing in the record to indicate, nor is it performed for the sole purpose of permitting respondent to file his lien within the statutory time. There is nothing before us indicating fraud on the part of respondent. It may be well to observe here that, had such a condition been presented, the rule which we have asserted here could not operate in favor of respondent. ness for the appellant, testified: February; something like that." In matters of this kind it is not necessarily the contract, but rather the furnishing and use of the materials and the putting of the same into the building, or the performing of the services upon the premises with the knowledge and consent of the owner of the premises, that constitutes the grounds for the lien. Whatever may have been said by other courts, or whatever may be said by other authorities upon the subject, this court has given valuable expression, in the light of which the question under consideration may be solved. The case of Skyrme v. Occidental Mill & Mining Co., 8 Nev. 219, presented facts quite analogous to the case at bar: There the details of the testimony show that a number of contracts were taken by several of the lien claimants, some taking two or more contracts; others but one. These contracts were completed at specified dates. The miners who had taken these contracts, when their contracts were completed, either took a new contract or commenced work by the day in the same mine. The mine closed down without paying its employés, and liens were filed by the miners, which liens included the amounts due to each claimant for his entire labor under the contracts and for his labor | sought to be accomplished was the alteration that the trial court should have held that From this statement the appellant contends services performed or material furnished by respondent after the 1st of February were separate items of services, and hence the notice of lien was void, not having been filed within the time prescribed by statute. However, other statements found in the record made by the witness Kane, as well as the testimony of the respondent, Gaston, warrant us in the conclusion that there was substantial evidence produced upon which to support the finding of the court. The record here discloses that the object |