76 Neb. 837 | Neb. | 1906
On tbe 9tb day of May, 1902, Charles Habn, plaintiff, entered into a contract in writing with tbe defendant, Right Reverend Bishop Bonacum, whereby it was agreed that the plaintiff should furnish the labor for the brick work required in the erection of a certain building on the premises belonging to the bishop, in consideration whereof the bishop was to pay the plaintiff $3,500. The bishop was to furnish the material. The work was to be performed to the satisfaction of the bishop and to the satisfaction of the superintendent employed by him to supervise the work. Payments were to be made as the work progressed, upon estimates made and signed by the superintendent, a certain percentage to be retained until the completion of the work. The contract also contains these provisions: “The last payment not to become due until sixty days after completion of the building, and the full payment and satisfaction of said contractor of all mechanics’ liens or claims, if any, filed or made on said building on account of labor performed on account of said contractor. The aforementioned estimates to be furnished
Thym filed a cross-petition in which he also prayed the foreclosure of a lien against the same property for certain cut stone which he had furnished to the bishop for the construction of the building. His claim is based on a written contract whereby he agreed to furnish certain
As to the plaintiff’s cause of action, the contest is between him and the bishop. One defense is that the plaintiff has never completed the work; another that the suit was prematurely brought, in that the plaintiff had never obtained a certificate from the clerk of Lancaster county showing that he, the clerk, had examined the records and found no liens against the property for work performed for the plaintiff by his workmen. Plaintiff’s claim for extra work' is denied. The bishop also filed several counterclaims against the plaintiff: (1) $2,400 liquidated damages for 240 days’ default after the 12th day of August, 1902, in the-completion of the Avork under the contract; (2) $240 damages for plaintiff’s failure to keep 10 men at work daily on the building; (3) $360 for pipes,, tanks, barrels, an engine, etc., furnished to supply water for mixing the mortar; $500 damage for the wrongful filing of the lien in question. AnsAvering Thym’s cross-petition, the bishop admits the contract, but denies that it was fully performed by Thym; he admits that certain “extras” were furnished by Thym, but denies that they were furnished in pursuance of any agreement betAveen them, and puts in issue the reasonable value of the “extras” furnished. He also claims a payment of $100, for which he asks credit.
First, as to the controversy between the plaintiff and the bishop. Several pages of the latter’s brief are devoted to an argument to justify the disallowance of the extras by the trial court. While the argument has not served to convince the plaintiff, it appears to have reconciled him to the decree, for he now expresses his willingness to abide by it; consequently, the plaintiff’s claim for extras requires no further attention. This brings us to the bishop’s contention that the work was not completed according to the terms of the contract. This contention is grounded on three propositions: (1) That two openings for stovepipes were not left in the flues; (2) that some brick work was left unfinished; (3) that the debris had not been removed from some of the flues, whereby they could not be used.
As to the first, the evidence justifies a finding that the openings were not provided for by the contract. As to the second, the evidence shows that it was completed in a couple of hours by a third party employed by the bishop.. The third was not discovered until sometime in the winter following the date fixed for the completion of the contract. The entire contention has the appearance of an afterthought. No testimony was offered by the bishop tending to show what it would have cost to complete the building in the particulars mentioned, but the plaintiff testified
It is also insisted that the plaintiff must fail in this action because he failed to furnish a certificate from the county clerk, shoAving that no liens had been filed against the property for labor performed for him. True, the contract provides for such certificate, but the evidence shoAVS no such liens, nor is it claimed that any existed. The time for filing such liens had expired long before the suit was tried- It is a maxim of equity that it looks to the substance, rather than to the form. No substantial right of the bishop has been violated by the failure to furnish such certificate. It does not appear that he ever insisted upon it, but, as we have seen, based his refusal to settle on other grounds. No advantage could result to him by requiring the plaintiff to furnish the certificate, and to require it at this time would be to sacrifice the substance for the form, and to require what Avould be purely a work
We come now to the bishop’s counterclaims against the plaintiff. Two items thereof, aggregating $2,640, are for damages for failure to perform the work within the time fixed by the contract, and .to keep ten bricklayers at work daily on the work. Without going into this claim, which is unreasonable on its face, it will suffice to say the evidence is ample to sustain a finding of a substantial completion of the work within the time fixed by the contract, and that, as we have seen, is sufficient. Another item is $360 for pipes, tanks, etc., required to furnish water used in doing the work. The bishop was to furnish the material, and Avater, it appears, falls within that category in this instance as the parties construed the contract before this controversy arose. As to the $500 item for damages sustained by the bishop by reason of the Avrongful filing of plaintiff’s lien, it is now tacitly conceded to be without merit, hence, it requires no further notice. The court awarded the plaintiff $593, with interest from October 18, T902. This is exactly the amount the superintendent gave as the fixed estimate, and practically the same as that stated in the bishop’s public letter hereinbefore mentioned. The decree as betAveen the plaintiff and the bishop appears to be equitable, and the latter, at least, has no just ground to complain of it. After the decree was entered the plaintiff’s claim was assigned to Robert J.. Greene, and by order of the court he Avas substituted as plaintiff.
We come now to the controversy betAveen Thym and the. bishop. To understand this it should be stated that Thym operated a stone-cutting establishment in Kansas City under the trade name of Carthage Stone Yard. He also acted as agent for a corporation, knoAvn as Carthage Stone Company of Carthage, Missouri. The two establishments were Avliolly disconnected save as to Thym’s agency for the corporation, but he was sole proprietor of the establishment in Kansas City. The corporation furnished rough stone; Thym furnished cut or dressed stone. Each
Thym’s claim for “extras” was wholly disallowed. The bishop admits that one of the items thereof should have been allowed, namely, for 150 feet of “stone belt course.” The reasonable value of this item according to the undisputed evidence is $90, and it should have been allowed. There is another item, namely, “stone platform in three pieces,” which the bishop admits he received, but which he
There remains to be considered the question of the priority of the mortgage of the insurance company. The plaintiff’s lien was filed December 16, and Thym’s October 22, 1902. Each was filed within 60 days from the completion of the contract upon which it is based. Comp, St. 1901, ch. 54, art. I, sec. 2: Both liens therefore attached to the property before the mortgage, which was executed October 22, 1902, and filed for record the following day. Henry & Coatsworth Co. v. Fisherdick, 37 Neb. 207. The decree of the district court, therefore, making their liens subordinate to that of the insurance company is erroneous.
It is therefore recommended that the cause be remanded to the district court, with directions to modify the decree in accordance with this opinion.
Reversed.
Tbe following opinion on motion for rebearing was filed October 18, 1906. Rehearing denied:
One matter discussed in tbe brief on rebearing is that no cross-appeal was taken. Tbis is a mistake. Tbe cross-appellant filed a brief in due season pointing' out certain errors of wbicb be complained. That is all that is required to perfect a cross-appeal. Meade Plumbing, H. & L. Co. v. Irwin, 77 Neb. 385. It is also pointed out that at one place in tbe opinion we inadvertently used tbe words June 23 instead of December 23, as tbe date from wbicb interest should be computed on Tbym’s claim.. While tbe error, owing to tbe context, could hardly be misleading, it should be corrected.
It is recommended that tbe error in tbe dates herein mentioned be corrected, and tbe motion overruled.
By tbe Court: For tbe reasons above stated, tbe decree is modified so as to allow interest from- December 23, 1902, and tbe motion for rehearing is
Overruled.