70 Neb. 807 | Neb. | 1904
Z. Taylor Turner and son are partners and contractors residing in the city of Omaha. In 1901 said partnership of Turner & Son entered into a contract. with Peter M. Conlding to erect a dwelling house on lot 14, hloclt 3, in Bemis Park, an addition to the city of Omaha. The H. F. Cady Lumber Company furnished certain material entering into the construction of said dwelling house, and on November 7, 1901, and within 60 days from the time of furnishing the last of said material, made out an account in writing of the material so furnished and, after making oath thereto, filed the same in the office of the register of deeds of Douglas county, Nebraska, claiming a mechanic’s lien for the amount then due said company. The material was ordered by Z. Taylor Turner, and the account made out, verified and filed in the office of the register of deeds was an account against Z. Taylor Turner individually. The amount due on said account not being paid, the appellee commenced this action May 7,1902, to establish and foreclose its mechanic’s lien. On the trial it developed that Conkling’s contract for the erection of the dwelling house was made with the firm of Z. Taylor Turner & Son, and it is now insisted that the sale of the materials having been made to Z. Taylor Turner and the account made out in that form, that the appellee is not entitled to a lien upon the premises! During the progress of the trial, and upon it becoming known that Conkling’s contract was with the partnership and not with Z. Taylor Turner, the plain
“Any person or subcontractor who shall perform any labor for, or furnish any material or machinery or fixtures for any of the purposes mentioned in the first section of this act, to the contractor or any subcontractor who shall desire to secure a lien upon any of the structures mentioned in said section, may file a sworn statement of the amount due him or them from such contractor or subcontractor for such labor or material, machinery or fixtures, together with a description of the land upon which the same were done or used within sixty days from the performing of such labor or furnishing such material, machinery or fixtures, with the register of deeds of the county wherein said land is situated.”
This clearly contemplates that the statement and affidavit shall show to whom the material, machinery or labor was furnished, and the question is: Does a statement and affidavit showing material furnished to one member of a partnership, where the contract of the owner runs to the partnership itself, come within the provisions of our statute so as to entitle the claimant to a mechanic’s lien? This question was before the supreme court of Kansas in Presbyterian Church of Hutchinson v. Santy & Co., 52 Kan. 462. In that case Thompson, Hanna & Co. had the contract for erecting the church, but the account filed ran against George E. Thompson individually. The court said:
“It appears that the materials furnished by the hardware company were in fact sold and charged to Thompson, but were so sold to be used in the erection of the church building, and the items charged were entered on the day-book as for the church. Thompson, alone, was not the
It is further objected that the petition does not state a cause of action because it fails to allege that any amount Avas due from Conkling to the contractors. Whether it Avould be a defense by the owner of the property to allege and shoAv that at the time the lien Avas filed nothing A\as due from him to the contractor is not a question necessary to be discussed in this case. If a defense, it is an affirmative defense which must be alleged and proved by the OAvner of the building. The law presumes that the owner Avill withhold from the contractor an amount sufficient to pay laborers and subcontractors, and they need not allege in their petition to foreclose their lien that an amount sufficient to pay them is still in the hands of the OAvner.
We discover no reversible error in the record, and recommend an affirmance of the decree appealed from.
For the reasons stated in the foregoing opinion, the decree appealed from is
Affirmed.