96 Neb. 521 | Neb. | 1914
In 1910 tbe Union Pacific Railroad ■Company bad let the contract for tbe erection of an office building in Ornaba to James Stewart & Company. Tbe cut stone was furnished by Alexander King & Company, stone cutters of Galesburg, Illinois, under a contract with Stewart & Company. Tbis action was brought to foreclose a lien claimed by plaintiff on account of stone furnished to Alexander King & Company to be used in tbe Union Pacific building. Tbe petition alleges tbe facts as to ownership-, tbe contract with James Stewart & Company; that Alexander King & Company had a contract with James Stewart & Company for tbe furnishing of stone to be used in tbe building; and that plaintiff furnished stone which was used by Stewart & Company. An itemized account of tbe stone claimed to be furnished is attached to the petition. Alexander King & Company answered with a general denial. Stewart & Company filed an answer containing a general denial, a plea that tbe affidavit was not filed within tbe statutory
The relevant and material facts as established by the evidence seem to be as follows: The plaintiff is the owner of quarries at Dark Hollow near Bedford, Indiana. Alexander King & Company are stone cutters, ■ taking rough quarry stone and at their plant in Galesburg, Illinois, cutting, sawing or planing it ready for use in buildings, according to plans furnished. Alexander King & Company agreed to furnish the contractors a large quantity of blue Bedford stone. A sample from the quarries of plaintiff was submitted to the architect and was approved by him, and on September 10, 1910, Alexander King & Company ordered from the plaintiff 13,000 cubic feet of Dark Hollow blue Bedford stone, in large unscabbled blocks, to be shipped at the rate of a car-load a day to their plant at Galesburg, Illinois. Alexander King & Company maintained a stone-yard at the plant where rough stone blocks received from various quarries were usually kept in stock. These were piled np in one end of the yard. The blocks were taken to the gang saws as needed, where they were sawed into slabs and pieces, according to the dimensions of particular pieces required. Sometimes a block Avould be sawed into a number of pieces in order to use the stone economically, and these parts would be distributed to different jobs. Of the 13,000 cubic feet shipped to Gales-burg under the order of September 10 about 1,200 cubic feet were used in a residence at Monmouth, Illinois, and over 2,900 cubic feet were used in a church building at DaAid City, Nebraska. There is some evidence tending to prove that the stone supplied by the plaintiff was known
But there is another difficulty in the plaintiff’s way. While in the orders given by King & Company to plaintiff it was mentioned that the stone was for the Union Pacific job, the purchaser exercised the right, with the tacit consent of the plaintiff, to use it in such other and different places as it deemed most to its advantage. As we have seen, part of the stone purchased was used in David City, Nebraska, part in Monmouth, Illinois, part in Omaha, and there is testimony that a small part of it was sold and delivered in Galesburg. King & Company had an open account with plaintiff running for several years back. The stone shipped was charged in this general account. No entry was made in any of plaintiff’s books indicating the buildings in which the stone was to be used, and all payments made were credited upon this general account, and not upon special contracts. It seems clear that the stone was sold upon the general credit of Alexander King & Company and not to be used exclusively for the Union Pacific or any other building. Apparently the credit and financial standing of the buyer were such that no care was taken to identify and itemize the stone furnished for each separate structure. Under such a state of facts, no lien can be successfully claimed. Phillips, Mechanics’' Liens (3d ed.) secs. 122-124; Frost v. Falgetter, 52 Neb. 692, and cases cited. And this applies with more force to persons most remote from the owner or principal contractor. Phillips, Mechanics’ Liens (3d ed.) sec. 125.
The district court found that at the time of the commencement of the action King & Company were" indebted to plaintiff in the sum of $5,074.40, being the balance of an open account; that the affidavit and account filed in the office of the register of deeds for the purpose of obtaining a lien was not a true or just account of the material furnished, but that a large amount of material furnished for other buildings was included, for which plaintiff was not entitled to a lien, which plaintiff well knew at the time
We have some doubt, when the evidence of the plaintiff’s bookkeeper as to Iioav the erroneous statement came to be prepared is-considered, whether the reasons assigned for the judgment of the district court are sound; but, even if unsound, the result reached is Avarranted by the evidence, and a proper judgment will not be reversed on account of an erroneous reason being given for its rendition.
The judgment of the district court is
Affirmed.