for the further reason that it is not proper re- [ and other and additional repairs were made at direct examination, and that it calls for a con- various times, continuing for a period of several versation, or conversations, that are in no way months, a notice of mechanic's lien filed within related to this case. The Court: The objection six months of the completion of the last work of may be overruled. A. No, none that I remem-repair was filed in time; the contract being a ber. Mr. Frame: Note an exception, if your continuing contract, although during the time honor please, upon the grounds stated." there were several times at which the plaintiff was not actively engaged in the repairs. Liens, Cent. Dig. 88 190, 192-207; Dec. Dig. [Ed. Note.-For other cases, see Mechanics'

[9] The ruling of the court is assigned as 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 Evidence held insufficient to show that the in ruling upon such objections. He saw the witness upon the stand and heard him tes-as to make invalid a notice filed more than six contract was performed in a certain month, so tify, and was in a good position to know months thereafter. just how the cross-examination impressed the jury upon the point in question. We cannot say that the court abused its discretion.

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

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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. Section 2221 of the Revised Laws, 1912, provides:

"Q. Now, Mr. Gaston, at the time you entered into this oral contract with Kane, Incortestified, was there any notice posted upon those porated, for alteration repairs to which you have premises anywhere to the effect that Mr. Avan"Every building or other improvement men- sino, the owner of the building, would not be retioned in section 1 of this act, constructed up-sponsible for work done thereon? A. No, sir; on any lands with the knowledge of the owner there was not. Q. Was there any such notice or the person having or claiming any interest posted upon those premises at the time you comtherein, shall be held to have been constructed menced work on the 11th of November, 1912? at the instance of such owner or person having A. No, sir. Q. Was there any such notice postor claiming any interest therein, and the inter-ed there at any time during the month of Noest owned or claimed shall be subject to any vember, 1912? A. No, sir. Q. Was there any lien filed in accordance with the provisions of such notice posted upon those premises during this chapter, unless such owner or person having the month of December, 1912? A. No, sir. Q. or claiming an interest therein shall, within Was there any such notice posted upon those three days after he shall have obtained knowl- premises at any time during the month of Januedge of the construction, alteration or repair, ary, 1913? A. No, sir. Q. Was there any such or the intended construction, alteration or re- notice posted upon those premises anywhere durpair, give notice that he will not be responsi- ing the month of February, 1913? A. No, sir. ble for the same, by posting a notice in writing. Was there any such notice posted anywhere to that effect in some conspicuous place upon upon those premises during the month of March, said land, or upon the building or other improve- 1913? A. No, sir. Q. Was there any such noment situate thereon." tice posted upon those premises anywhere during the month of April, 1913? A. No, sir."

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

The witness McDermott testified to having worked in the building as a plumber during 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.

The witness C. W. Farrington testified that he worked in the building as a carpenter during the month of November, 1912, and as late as May 23, 1913, and that he saw no notice.

The witness E. J. Brennan testified that he worked in the building during the months of 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 worked in the building for several days during the month of November, 1912, and saw no notice.

The witness Otto Koehler testified that during the month of December, 1912, he worked in the building as a paper hanger and painter, and saw no notice.

The testimony of several other witnesses was to the same effect.

Whatever might be said as to the negative nature of the testimony of the witnesses called in behalf of respondent in the court below, the testimony of the respondent himself was positive upon the question that no notice was posted. On this question, then, there was a substantial conflict of testimony; and, there being positive and substantial evidence produced by the respondent himself upon which the finding of the court on the question of fact as to the posting of the notice can be supported, the rule universally adopted by this court, and by nearly all other courts of last resort, is applicable here, and the finding will not be disturbed. Tonopah Lumber Co.

Pac. 636; Turley v. Thomas, 31, Nev. 181, | the premises and in the alteration and im101 Pac. 568, 135 Am. St. Rep. 667.

"If each order and delivery of materials durThe case of Skyrme v. Occidental Mill & ing the progress of an improvement constituted a separate contract, and required a separate Mining Co., supra, was referred to approvinglien, it will be readily seen that, instead of pro-ly in Capron v. Strout, 11 Nev. 304, and also viding a practical, simple, and efficient method in the case of Ferro v. Bargo Mining & Millof security to the laborer and materialman, as the statute certainly intends, a complication ing Co., 37 Nev. 139, 140 Pac. 527. To the would arise, requiring many liens or the delivery same effect is the reasoning in the following of all materials at one time, or the performance cases: Salt Lake Hardware Co. v. Chainman of all labor by continuous and uninterrupted Mining & Electric Co. (C. C.) 137 Fed. 632; service." Salt Lake City v. Smith, 104 Fed. 457, 43 C. C. A. 637.

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 | testimony of the respondent, Gaston, warrant 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 The record here discloses that the object

and improvement of the premises of appel-, his right under the statute to a lien for the lant; that the services of respondent, as well services performed or the material furnished as the material furnished by him, were de- it will be unnecessary to determine in this voted to the accomplishment of the primary case. purpose. The services performed and the material furnished were performed and furnished from time to time to suit the convenience of the lessee of the building. Many of the changes and alterations made in the interior of the building by respondent and many items of material furnished by him were not taken into consideration or contemplated at the original making of the contract. This is not an unusual thing in bringing about alterations and changes in building interiors, where the building has in the past been used for some particular business, and a new business about to be installed therein requires different arrangements, many of which cannot be reasonably foreseen at first. Treating the whole as a continuing contract, the filing of the lien notice within the statutory time after the completion of the last services performed by respondent entitled the respondent to a lien for the whole, less the sum total of the amounts paid thereon. Our conclusion reached as to the second assignment of error discussed in appellant's brief would conclude the third assignment of error also.

[6] It is the contention of appellant that the respondent, by agreement with Louis Avansino, the owner of the premises, specifically waived his right of lien. In this respect the testimony of Louis Avansino, Sr., the owner of the building, is to the effect that about the 11th or 12th of November, and after leasing the premises, he saw some men working in the old dining room, of whom respondent was one, and that on going in there he told them, in effect, that he would not be responsible for any work done by them in the place. He further testified, in effect, that the respondent, Gaston, at that time said to him, in substance, that he had a contract; that he would get his money from Kane; that he would "make no trouble" for Avansino. The witness further stated, in substance, that Gaston at that time said to him that he would hold Kane responsible for the work and services performed. The testimony of the respondent, Gaston, in this respect is to the effect that on the occasion he stated to Avansino that, if Kane was given a chance, he would pay for the labor and material. The witness, however, denied that he at any time stated to Avansino, or to any other person, that he would release Avansino or the premises from responsibility.

It is the contention of appellant that respondent by his acts and utterances made to and in the presence of Louis Avansino, the owner of the building, waived his right of lien as against the premises on which the labor was being performed and the material furnished. As to whether or not the respondent could by parol agreement waive

The statements of the respondent, Gaston, testified to by the witness Louis Avansino, Sr., upon which it is contended that the former waived his right of lien, are uncertain, even if viewed in the light most favorable to the contention of appellant. We may with propriety observe in passing that, as a general proposition of law, a release of a lien will not be inferred from doubtful expressions (Jones on Liens, vol. 2, p. 747); and, as stated by many authorities, where the terms of the agreement are ambiguous or uncertain on the question of release, the doubt should be resolved against the waiver. (Davis v. La Crosse Hospital Association, 121 Wis. 579, 99 N. W. 351, 1 Ann. Cas. 950). Between the testimony of the respondent and that of appellant here there is a sharp and distinct conflict. The trial court had opportunity to observe the conduct and demeanor of the several witnesses upon the stand, and, after so observing and listening to the testimony given, found against the contention of appellant here. In this instance, not only is there a substantial conflict in the testimony, but there is substantial evidence upon which the finding of the court in this respect may be supported, for which reason we will not disturb the same. Anderson v. Feutsch, 31 Nev. 501, 103 Pac. 1013, 105 Pac. 99.

We deem it unnecessary, in view of our position here expressed, to touch upon other matters raised in appellant's brief.

The judgment of the lower court and the order appealed from should be affirmed. It is so ordered.

NORCROSS, C. J., and COLEMAN, J., concur.

DISCRETION.

In a suit to quiet title, the refusal of a motion to set aside a judgment for defendant, on the ground that the reason contained in the supporting affidavits was immaterial, and that the statute did not contemplate the granting of a new trial on such showing, was not an abuse of the trial court's discretion.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 673; Dec. Dig. 344.]

Error to District Court, Phillips County; H. P. Burke, Judge.

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