22 Ind. App. 445 | Ind. Ct. App. | 1899
— Appellees commenced this action in the Hendricks Circuit Court of Hendricks county, Indiana, to foreclose a mechanic’s lien against certain property of appellants. The venue was changed to the Boone Circuit Court. The complaint was in one paragraph. Appellants answered in five paragraphs; the first being a general denial, and the second, third, fourth, and fifth paragraphs of answer being pleas of payment stated in various forms. The cause was tried by the court, who, at the request of appellants, made a special finding of facts, and stated his conclusions of law thereon. The facts so stated are substantially as follows: In the month of March, 1896, one W. O. McCormick, who was a contractor and builder, made and entered into a contract with the appellants, who were doing business under the name and style of the Magnetic Springs Co., to erect for them a certain building, which was to be finished on or before the 1st day of March, 1896. Eor the construction of said building appellants agreed to pay the said McCormick the sum of $950. This amount was to be paid as follows: $575 was to be paid as soon as the lumber for said building had arrived at the railroad station at Cartersburg, Indiana; $375 of said amount was to be paid on the 30th day of April, 1896, or on the completion of said building if completed prior to April 30, 1896. A copy of the contract was filed with the complaint and made a part thereof. For the faithful performance of said contract, each party bound himself to the’ other in the sum of $1,000, and it was further stipulated in said contract that security against mechanics’ and other liens was to be furnished by the said McCormick before the sureties or bondsmen would be released by appellants. In the
The only error assigned is that the court erred in its conclusions of law stated upon the facts found. Stated in the language of counsel for appellants: “The contention of the appellants is that, 'under all the circumstances as shown by the special findings, the knowledge the appellees had of the contract between appellants and McCormick, its terms as to payment, where the checks and the money came from that constituted the first payment, that when the appellees received the $575 of appellants’ money it was more than enough to pay all that was owing the appellees, that under all these circumstances the reception of the money was payment to appellees, and the conclusions of law ought to be for appellants.” We cannot adopt the views of appellants’ counsel. The facts clearly show that appellees received the $575 from McCormick under an agreement the terms of which were partly written, as represented by the receipt executed by appellees to McCormick, and partly verbal, as is shown by the special finding of facts. The receipt shows that the money was received on deposit by appellees subject to the order of McCormick, and that it was agreed, at the
It is also contended by counsel for appellants that appellees cannot enforce their lien because- one of the provisions of the contract between McCormick and appellants was as follows: “Security against mechanics’ or other liens is to be furnished by W. O. McCormick prior to release of surety or bondsmen by Magnetic Springs Company.” But appellees were not parties to the contract, neither were they sureties or