113 Neb. 655 | Neb. | 1925
Action to foreclosure a mechanics’ lien on a 240-acre 'farm in Cass county, owned by Fred Ronne until his death April 18, 1921, when it passed to his heirs, who are made defendants. The Lincoln Joint Stock Land Bank and Nebraska State Bank held mortgages on the land, were made defendants, and filed cross-petitions praying establishment of the liens thereof prior to plaintiff’s alleged lien. Decree was rendered finding the mortgage of Lincoln Joint Stock Land Bank a first lien; a mechanic’s lien in favor of plaintiff for $978.87 second, and Nebraska State Bank mortgage third. The Ronne heirs and Nebraska State Bank appeal
Plaintiff alleges that it is a partnership engaged in the lumber business at Manley, Nebraska; that Fred Ronne was the owner of the lands upon which the improvements were made, and on March 9, 1920, plaintiff made an oral agreement with Fred Ronne to furnish materials for the construction of a hog house and for other materials for the improvement of said lands; that said materials were furnished between March 9, 1920, and April 18, 1921, in the amount of $903.35, and that a claim of lien therefor was duly filed August 12, 1921. These matters were put in issue by proper pleadings. The error assigned is that the decree is not supported, by the evidence, which requires a brief summary thereof. Plaintiff had no dealings directly with Fred Ronne, who lived in Weeping Water. The entire negotiations were with Frank Ronne, a son of Fred, who was in possession of the land as a tenant of his father at a cash rental. The existence of a contract with the owner as a basis for the lien, therefore, depends upon the alleged agency of Frank. The evidence claimed to establish such agency is the fact that Frank was the son of Fred; that he was a tenant of Fred’s farm, and that, when the arrangement was made and first materials bought, Frank told plaintiff that “he was going to build a hog house; that his father and him had talked it over,” and told plaintiff to charge the materials to him (Frank) and his father would pay him and he would pay plaintiff.
Frank, called as a witness for plaintiff, denied the statements attributed to him. But, assuming plaintiff’s evidence to be true in every particular, it is clearly insufficient to establish agency. Frank as a tenant had no authority to incumber the land for improvements. Waterman v. Stout, 38 Neb. 396; Moore v. Vaughn, 42 Neb. 696. As a son of Fred Ronne he had no implied authority. No circumstances are shown in the evidence authorizing such implication. The son was not living with the father as a member of his family. The father lived in a distant city, though in the
Decree of district court reversed and cause remanded, with instructions to dismiss plaintiff’s action at its cost, in all other respects, the decree is affirmed.
Affirmed in part, and reversed in part.
