Chicago Lumber Co. v. Tomlinson, 54 Kan. 770

Chicago Lumber Co. v. Tomlinson

54 Kan. 770 | Kan. | 1895

The opinion of the court was delivered by

Allen, J.:

1. Case made-power of trial judge. The defendant in error again challenges the case-made, on the ground that it was never served on the defendant. This question was raised by motion, and decided adversely to the defendant in error at the February, 1893, session of the court. A supplemental certificate signed by the trial judge, dated February 4, 1895, without any attestation, has been attached to the case-made, but this cannot be considered. The jurisdiction of the trial judge terminated when he signed and settled the case, on the 23d of January, 1891. (Lewis v. Linscott, 37 Kas. 379; Graham v. Shaw, 38 id. 734.)

The trial judge held that Harry C. Lucas, as executor, had no power to bind the estate of his father, Thomas Lucas, deceased, for the completion of the building. Thomas Lucas was a resident of Allen county, Indiana. H. C. Lucas, the executor, resided in Chicago, and all of the heirs of the estate of Thomas Lucas were nonresidents of Kansas. Silas T. Lucas, although a son of Thomas Lucas, had received an advancement from his father amounting to more than his share of the estate, and therefore had no interest in the estate left by his father. He, however, looked after his father’s interest in the contract for the erection of the Garden City building, at his father’s request, prior to his death, and continued to look after the matter after his death. H. C. Lucas testified, among other things:

“ Q,. Have you not had. correspondence with Mr. C. W. Morse, one of the agents referred to, in connection with this *776building ? A. The total business done down there was attended to by my brother.

“Q,. Was done with your knowledge and consent? A. By my brother; yes, sir.”

2. powers.01 We think the testimony of H. C. Lucas, who was entitled to a share in his father’s estate, and was therefore interested in the Garden City property, shows that S. T. Lucas, his brother, had authority to represent him, and make necessary contracts for the protection of his interests in the property. While he could not, as executor, without express authority in the will, bind the estate by a new contract, he certainly could bind himself, individually, as one of the parties in interest. As to the other heirs of Thomas Lucas, the record seems to show that C. W. Morse filed a demurrer in the case for them, which was overruled, and then made no further appearance. Just before the commencement of the trial, the court noted a default on the part of the Lucas heirs other than the executor, but the court seems to have tried the case as though H. C. Lucas, the executor, were defending for all of the heirs. The court held that S. T. Lucas had no authority to bind any of the heirs of his father, and denied a judgment against any of them, as well as refused a lien against the property. In the state of the record, and considering the manner in which the case was tried and disposed of by the court, we do not feel warranted in directing judgment against the heirs who are apparently in default. The proof relied on to show that S. T. Lucas was authorized to make any contract binding them is very weak if not absolutely wanting. It is urged by the plaintiff in error that the facts that the expenses of S. T. Lucas in looking after the business at Garden City were paid by the executor out of the funds of the estate, and that certain payments were made by his direction on the contract, and that the executor’s final account showing these disbursements was assented to and accepted by all the heirs, show a ratification by them of all that was done by S. T. Lucas. But the settlement only shows payments made prior to the 27th of June, *777when it is alleged the new contract was made for the completion of the building, after its abandonment by Case, and the payments other than that of $100 to S. T. Lucas were made in the name of J. A. Case, the original contractor. This certainly does not show any ratification, by the heirs, of the contract subsequently made by S. T. Lucas with the plaintiff in this case. S. T. Lucas undoubtedly had power to bind himself personally, even though he had no interest in the property, and we think the evidence in the case shows he had authority to bind H. C. Lucas so far as his interests were affected, and that the court erred in denying any judgment against U. C. Lucas.

3. Hen^pjemament.tate" The findings of the court show that the building was not completed until about the 8th of September, while the state-* ment for the lien was filed on the 3d, and therefore premature. The court also finds that the second statement was never filed. As the first statement claimed only under a subcontract with John A. Case, and with Callahan and Smith, as his successors, the plaintiffs would be confined in their proof to what they furnished under such a subcontract, and the court’s conclusion of law that the plaintiffs were not entitled to a mechanic’s lien is supported by the findings of fact. Of course, the plaintiffs cannot successfully urge inconsistent claims. If the materials were furnished by them under a subcontract with J. A. Case, who alone contracted directly with Tomlinson and Lucas for the erection of the building, their only remedy would be against Case for a personal judgment, and against Tomlinson and Lucas for a lien on the property only. The plaintiffs, however, seem to have placed their main dependence on the subsequent contract made with Tomlinson and S. T. Lucas, and the amended mechanic’s lien prepared by them and claimed to have been filed on the 6th of September, but which the court finds was not filed in fact,, is framed on the theory of this subsequent contract. If this statement was not filed in fact, or was prematurely filed, before the completion of the building, the plaintiffs would not be entitled to *778any lien, but might be entitled to a personal judgment against such of the defendants as authorized the making of the new contract or subsequently ratified it.

4. Supreme court-cross petition in error. The trial court found that there was due, to the defendants who filed cross-petitions, for labor and material furnished for the same building, the following sums: J. A. Sankey, $1,111.96; Felker & Ganschow, $1,916.24; R. E. Gray, $537.50. Counsel for plaintiffs in error say in their brief: £In behalf of the cross-petitioners, we submit their case upon the propositions announced by us in support of the petition in error by plaintiffs in error, for the same error permeates the ruling denying each of them a valid mechanic’s lien.” None of these parties appear in court as plaintiffs in error, nor has any cross-petition in error been filed by either of them. They, therefore, so far as we are informed, have never had any case pending in this court, except so far as their interests might be affected by the decision of the case brought here by the- Chicago Lumber Company. Their claims for affirmative relief are not before this court in any manner.

A petition in error has also been filed and separately numbered, referring to the same case-made, and complaining of the ruling’of the court on a motion made by H. C. Lucas, as executor, to discharge the attachment issued in the action against the property of Thomas Lucas, deceased, on the ground, among others, that the evidence on the trial shows that the estate of Thomas Lucas is not liable upon the contract sued on in this action. Even if we were to treat the petition in érror as properly attached to the case-made and entitled to consideration, there is no error in the ruling of the court on this motion. Under the evidence in the case, no attachment could be sustained against Harry C. Lucas, as executor, whatever the rights of the parties might be against the heirs interested in the estate. For the errors pointed out, the judgment must be reversed and a new trial ordered.

All the Justices concurring.