16 Neb. 153 | Neb. | 1884
This action was brought in the district court of Lancaster county to foreclose a mechanic’s lien. On the trial of the cause the court found that no lien existed, and rendered judgment to that effect. The plaintiffs appeal. It is alleged in the petition that between the twenty-fifth day of July and the fourteenth day of October, 1881, both days inclusive, William H. Dobson & Co., of Lincoln, erected for W. Sandford Gee three dwelling-houses, with their appurtenances, on lots 10, 11, and 12,. in block 162, in the city of Lincoln, for the agreed-price of $1,241.70, upon which there has been paid the sum of $763. The account is as follows:
“ W. Sandford Gee to Dobson & Co., Dr.
July 25, Two small houses..........................$ 510.00
“ One and one-half story house............ 475.00
“ Three doors extra.......................... 9.00
• “ 3 frames...................................... 7.00
“ 4 transoms.....:....................... 4.50
“ Hardware.................................... 6.00
“ Extra sheathing......■....................... 50.00
Aug. 3, 3 doz. wardrobe hooks.................... .75
“ 6, 1 kitchen on one and one-half story
house........................... 105.00
“ 6, Extra labor on 7 windows............. 7.00
“ 19, One-half day extra on house ............ 1.50
“ 22, Extra on house door frames......'........ 6.00
Sept. 5, Extra work and material on kitchen... 26.95
*155 Sept. 8, One-half day extra labor window frames ' 1.50
Oct. 8, 1 porch....................................... 30.00
“ 14, Sash...;....;............;................. i.eo
$1,241.70
Cr. '
Aug. 30, By cash......................................$ 200.00
Sept. 10, “ 300.00
“ 24, “ ........................:............■ 11.00
Oct. 1, “ 26.00
“ 29, “ 100.00
Nov. 4, “ ..........•............................. 50.00
By plastering and flues small house................. 76.00
(Signed) William H. DobsoN & Co.”
The plaintiff’s are assignees of said account.
The petition further alleges that said lots were owned by said Gee as one entire tract without separation or division, and that said houses were erected under one entire contract with said Gee, and without regard to the amount •of labor and material required for each house, and that the payments above mentioned were made upon the general account and not upon any particular house. Then follow the usual allegations showing the filing of the lien and the amount due thereon, etc.
Gee, in his answer, does not deny that the contract was made as an entirety for the erection of the three houses and not for each one separately. On the tenth of September, 1881, Gee sold and conveyed lot 12, in said block, with the dwelling thereon, subject to a mortgage of $400, to Mary E. Tower; and on the twenty-seventh of the same month, sold and conveyed lot 10, in said block, with the dwelling thereon, to Julian Plenz; and on the third of October, of that year, sold and conveyed lot 11, in said block, with the dwelling thereon, to James G. Kyle, who soon afterwards conveyed to Wales Frank Severance. These parties answer, denying the entirety of the contract and
The first question for determination is, whether or not the evidence shows that the houses in question were constructed under an entire contract. The proof clearly shows that the original contract was for the erection of two houses, one being on lot 10 and the other on lot 11, for an agreed price, and that the contract was extended to include lot 12 for a specified sum. Extra work was done on all the houses, and changes made under the direction of Gee himself, and a general account of the extras kept without regard to the particular house upon which they were placed. And the money paid by Gee was not, so far as appears, upon any particular house, but to be applied on the account. This being so, the lien attached to all the lots and houses. The words in sec. 1 of the mechanic’s lien law of 1866 [Gen. Stat., 466], “and the lot of land upon which the same shall stand,” do -not restrict the lien to arbitrary and artificial lines but include at least all the lots upon which the buildings or any part thereof are erected. Chotean v. Thompson, 2 Ohio State, 114.
. II. The items of the account are sufficiently definite. When a mechanic enters into a contract to complete a building or buildings for an entire price, he need not file an itemized account of his labor and materials used' in the erection of said buildings, but the entire job may be put down as a single item. Davis v. Hines, 6 Ohio State, 473. Thomas v. Huesman, 10 Id., 152. Manly v. Downing, 15 Neb., 637. In this case the extra labor and material used were itemized in proper form, while the contract price for the erection of the houses was properly charged as a separate item. In our view this was sufficient.
. III. A party purchasing a building within four months from the time of its completion, or after repairs have been made upon it, takes it subject to any legitimate claim ■against it for erecting or repairing the same. The law is
IV. Cantrell & Wilson filed a cross-petition claiming a mechanic’s lien upon said buildings and the lots on which they stand for a balance due for plastering said houses. The facts are substantially the same as in the case of Doolittle and Gordon, and they are entitled to the same relief. A decree will therefore be entered in favor of the plaintiffs and Cantrell & Wilson for the amount of their claims, and the same will be apportioned between the lots in question according to the value of the labor and material expended on each.
And in case the parties cannot agree as to the proper amount to be assessed against each lot the court will appoint a referee to take testimony and report the facts. The judgment of the court below is reversed, and judgment will be •entered in this court in conformity to this opinión.
JUDGMENT ACCORDINGLY.
