52 Neb. 692 | Neb. | 1897
The district court of Dawes county rendered a decree giving Thomas Madden and Robert Hood subcontractors’ liens against certain real estate of Harriet E. Boomer for the value of material and labor furnished by them to one Falgetter, who, in pursuance of a contract with Mrs. Boomer, was erecting an improvement upon said real estate. From this decree Mrs. Boomer (appeals. Falgetter and Mrs. Boomer entered into a contract in writing in and by which Falgetter agreed to furnish the material, perform the labor, and build for Mrs. Boomer a dwelling-house upon her real estate. As full compensation for such labor and material Mrs. Boomer agreed, on completion of the improvement, to convey to Falgetter certain real estate described in the contract. The agreement is silent as to the contract price for the improvement and as to the value of the real estate. Falgetter began the performance of his* contract, but before it was entirely completed abandoned it, and seems to have departed the realm. The appellee Hood "furnished Falgetter part of the lumber and building-material used by him in the construction of this improvement for Mrs. Boomer. Within sixty days after the date of the furnishing of the last item of material he filed a sworn statement of the amount due him from Falgetter for the material, together with a description of Mrs'. Boomer’s real estate, with the register of deeds of Dawes county, where the same was situate, and claimed a lien ■thereon for the amount due him from Falgetter. To the claims of 1-Iood and Madden for subcontractors’ liens on her premises Mrs. Boomer interposed? among other
1. Falgetter, the contractor, having in pursuance of an express contract with the owner of real estate furnished the labor and material for"the erection of an improvement thereon, was, by section 1, article 1, chapter 54, Compiled Statutes, vested with a right to a lien upon said real estate to secure the payment of the contract price for erecting such improvement; but this right to a lien was one which the contractor might waive, and as he stipulated to take a certain piece of real estate in payment of his compensation for erecting such improvement, we think Falgetter waived his right to insist upon a lien against these premises, as it was not the intention of the parties that this real estate should be a security to insure Falgetter being recompensed for his services in erecting the improvement; but the real estate was to be Falgetter’s entire recompense for his services in the premises. Certainly this is true in the absence of fraud or a failure or refusal of Mrs. Loomer to make the conveyance of the real estate as agreed. See Dore v. Sellers, 27 Cal., 588, in which a contractor agreed to furnish the material and construct a building in consideration of a debt then due from him to the owner, and it was held that the contractor had by the contract waived his right to a lien upon the premises upon which the improvement was erected. (See also Bayard v. McGraw, 1 Brad. [Ill. App.], 134; Jones & Magee Lumber Co. v. Murphy, 19 N. W. Rep. [Ia.], 898.)
2. But Falgetter has not attempted to assert a lien against the premises upon which this improvement was erected; and, since he waived his right to a lien and
3. In the case at bar the district court not only gave Hood a lien upon Mrs. Loomer’s real estate, but rendered a personal judgment in Hood’s favor against Mrs. Loomer for the value of the materials which Hood had furnished Faigetter. If the subcontractor had been entitled to a lien against Loomer’s real estate he would not have been entitled to this personal judgment. As already stated, there is no privity of contract between an owner and a subcontractor, and judgments in this class of cases are based always on a contract or the violation of a contract express or implied.
é. We must not be understood as deciding that be=
The decree of the district court is reversed and the actions of Hood and Madden dismissed.
Reversed and dismissed.