44 Neb. 244 | Neb. | 1895
On the 25th day of August, 1890, the Badger Lumber Company, a corporation dealing in lumber in the city of Lincoln,.filed in the office of the register of deeds, in Lancaster county, a “verified account of items” of certain material which it alleged it had, previous to that time, furnished for the erection of a “dwelling house” upon certain real estate. This “ verified account of items ” recited that in the month of August, 1889, one Cadwalader entered into a verbal contract with the Badger Lumber Company for lumber and other material for the erection of a dwelling house on lots 1, 2, 3, 10, 11, 12, in block 3, in Avondale Addition to the city of Lincoln; that in pursuance of said verbal contract the Badger Lumber Company, between the' 14th day of August, 1889, and the 2d day of May, 1890, furnished the material mentioned in said account on said premises, and that such material was used on said premises in the construction of said “dwelling house,” and claimed a lien against said premises for such material for a balance of $492.18 remaining unpaid. The Badger Lumber Company brought this action in the district court of Lancaster county, making the “verified account of items” filed in the office of the register of deeds of said county the basis of its suit, and in its petition set out the making of the verbal contract with Cadwalader to furnish material for the erection of a “dwelling house” on said real estate; that it had
The undisputed evidence is that the verbal contract between the Badger Lumber Company and Cadwalader was that the former would furnish material to the latter for erecting a building on each of the six lots mentioned in the “verified account of items” filed in the office of the register of deeds by the Badger Lumber Company; that the material, in pursuance of said contract, was used indiscriminately by Cadwalader in erecting these buildings, one •on each of said six lots. But the evidence does not show, nor was there any attempt to show, what proportion of the material mentioned was used in constructing the buildings on the lots and parts of lots which, by the decree of the district court, was made liable for the balance- due the Badger Lumber Company from Cadwalader. In Byrd v. Cochran, 39 Neb., 109, Harrison, J., speaking for this court, said: “When a subcontractor paints two separate
The finding and decree of the district court in favor of the Badger Lumber Company only is reversed and the cause remanded to the district court for further proceedings in accordance with this opinion. All the costs of this appeal are to be taxed to the Badger Lumber Company.
Judgment accoedingly.