57 Neb. 649 | Neb. | 1899
This action was brought in the district court of Hall county for the foreclosure of a mortgage held by the Grand Island Banking Company, and it obtained a decree; of which neither it, nor any other party, complains. This mortgage was upon certain real property in Grand Island, on which the proprietor had succeeded in erecting a hotel, but had not succeeded in paying the mechanics’ liens and mortgage indebtedness thereby rendered unavoidable. It is not essential, and would be simply confusing, to describe many of these, for no one asks to have them placed in a class senior or junior to that in which they were placed by the district court. The appellants are Charles T. Durkee and the Fremont Manufacturing Comp any, wh ose appeals present the same question, and Samuel A. Peterson and George A. Packer, who, as joint mortgagees, hold but a single interest litigated. The appellee whose priority is challenged is the Chicago Gas & Electric Fixture Manufacturing Company. This appellee was placed in the first class, Peterson and Packer were alone placed in the second class, and Durkee and the Fremont Manufacturing Company were placed in the third class, and in this order the respective priorities of these parties were established by the decree appealed from. The mortgage to Peterson and Packer was made while the hotel was in course of erection, and was
Charles T. Durkee alleged that on October 10, 1892, he entered into a written contract with Gustave Koehler, the proprietor of the hotel building in course of erection, by the terms of which contract Durkee undertook to furnish the tin-roofing, steel ceilings, copper and iron cornices, bay-window trimmings, copper finials, crestings, galvanized iron cornices, gutters, and conductors that, should be necessary in and about the construction and completion of the hotel building, for all of which he was to receive $2,435. There were extras furnished, but the balance, because of payments found by the court, was $1,002.14. The debit items of the account attached to the claim filed for a mechanic’s lien were as follows:'
“1893. Aug. 25.
To work, labor, and material on building, as
per original contract....................$2,435 00
To extra iron ceiling in office saloon, reading
room, and lunch room, agreed value....... 400 00
To extra copper work...................... 30 00
To extra tinning and work.................. 60 00
To metal tile extra.............?........... 26 00
$2,951 00”
On the face of the above statement it would seem unquestionably true that the mortgage to Peterson and Packer should have precedence over the lien of Durkee.
In Badger Lumber Co. v. Mayes, 38 Neb. 822, there was used, with reference to facts resembling those under consideration, the following language: “It is probable that * * in a contest between a lienor and mortgagee the time when the material in its manufactured form was delivered upon the premises should be considered the time when the lien attached. So if, in this case, the evidence showed, that the mortgage of the New Hampshire Fire Insurance Company was executed before any delivery of the manufactured material upon the premises, it would appear unjust to give .the plaintiff priority of lien, although lumber may have been delivered for the purpose of manufacturing at the planing mill before the mortgage was made. The notice to subsequent lienors is derived from the condition of the premises (Henry & Coatsworth Co. v. Fisherdick, 37 Neb. 207; Holmes v. Hutchins, 38 Neb. 601); and it would seem too much to require of a mortgagee that he should not only take notice of what was actually going on ■ upon the premises, but should also investigate as to whether or not materials had been purchased for an improvement and had been delivered elsewhere.” Counsel for Durkee insist, however, that the above quoted language was with reference to the delivery of raAv material at a planing mill for manufacture into blinds, doors, etc., whereas Durkee’s claim Avas for work for the building on the raAv material, and, therefore, that the -lien commenced from the commencement of this Avork. But what is raw material? Is it the copper ore upon which Durkee’s employes expended their skill; and if so, why? Before this ore reached Fremont
The Grand Island Plumbing Company, having complied with the provisions of the statute with reference to filing its claim for a lien, assigned that claim to the Chicago Gas & Electric Supply Company, the appellee hereinbefore specially referred to. The first item supplied in this account was the furnishing and putting in of some galvanized pipe, a globe valve, a nipple, and a coupling. These, it was testified, were necessary to connect with the city water main, and it was further testified that when completed this was paid for. The date of this item was April 15, 1893. The next item in the
There was a contention as to whether certain saloon fixtures were personal or real property. We are not at all confident that Ave could add to public general knoAvledge any new or valuable information by describing the appearance or functions of what seem to be the ordinary equipments of a saloon. We shall therefore refrain from
Reversed and remanded.