77 Ind. App. 305 | Ind. Ct. App. | 1921
Lead Opinion
This appeal grows out of the failure of the court to order the payment of the several claims of appellants out of the funds in the hands of appellee, who is the commissioner appointed to construct a certain drain as ordered by the Huntington Circuit Court. The contract for the construction of said work was-let to appellant Tere A. Clark, and was by him assigned to Harry Newman. The court found that Newman was entitled to $20,743.85 on account of work performed by him, and that appellee, Huntington County Bank, held a valid assignment of the same and was entitled to an order for the payment of said sum less the amount of certain liens and claims aggregating $2,298.40. The claims of appellants, eighteen in number and aggregating $9,802.13 were found to be due and owing by the contractor but that they were not liens on the funds in
The appellants Herman Tapp Construction Company, Paige Engineering Company, Overland Construction Company and Harmon McEnderfer, each-claim a lien for rental due them from the contractor for machinery, equipment, and tools which they had leased to the contractor and which were used by him in making excavations under the contract. Reichenbach and Wickenhiser, Kreigbaum Brothers, Chicago Pneumatic Tool Company, National Mill Supply Company and Herman Sonkin, each claim a lien for materials used in making repairs on the leased machinery and equipment used by the contractor in performing the work on the drain, and which repairs became a part of such equipment and were removed with the equipment by the owners thereof. Stanton A. Guest and Jack Paine are machinists and plumbers, and claim liens for labor and for material used in making repairs on the leased machinery. Tere A. Clark, William A. Broaderick, and Roy Decker are expert engineers, superintendents, and bookkeepers. They were the personal representatives of the contractor and seek a lien for services rendered in procuring machinery, making trips to various places, hiring men, keeping books, looking after the financial affairs, paying expenses, borrowing money, making suggestions and giving orders about locating machinery hnd how the work could best be done, and superintending the machinery in operation. The Standard Oil Company and the Bartlett Trucking Company furnished grease and oils used for lubricating the leased machinery and for coal used as fuel tp create steam to operate the leased machinery. E. K. White had a claim for premiums on an insurance policy issued to the contractor
The appellee Huntington County Bank made loans to the contractor in order that he might carry on the work, and in order to secure the bank, the contractor assigned the estimates as they were made by the engineer in charge of the work. The total amount so loaned by the bank being $20,453.47.
The section of the drainage law under which appellants claim they are entitled to a lien is §6147 Burns 1914, Acts 1907 p. 508, which reads as follows: “All laborers and other persons who shall hereafter perform any labor or other services, or furnish board or any materials in the construction of any work under the provisions of this act shall have a lien upon the funds raised for the payment of the same; and upon notice in writing filed with the person whose duty it shall be to pay out such fund, of the amount due and what the same is for, such person shall withhold payment to the contractor for such work to an amount sufficient to satisfy such lien until the same is adjusted and paid; and in case of disagreement between the contractor and the person claiming such lien as to the amount or validity thereof, the court ordering the construction thereof shall, upon motion of the commissioner, the contractor, or'the person claiming such lien, determine such mat- • -k *k íJí??
This section is an amendment of §7 of the old drainage act (Acts 1885 p. 129) which provided that, “All laborers and other persons who shall hereafter perform any labor or furnish any materials in the construction of any work under the provisions of this act, shall have a lien upon the funds,” etc.
In the instant case Clark had been awarded the contract for the construction of this particular work. He later assigned his contract to Harry Newman, who in writing and in consideration of such assignment agreed to employ Clark as an efficiency engineer at an annual salary of $5,000 and to give him forty per cent, of the. net profits earned under the contract. The principal part of the labor of Clark appears to have been to travel over the country from state to state and procure the machinery with which the work could be done and to
It is very probable that these men did some work for which they would have been entitled to have a lien on the funds. But it is impossible to tell how much of such work they did or the value of it. They seemed-to be drawing a salary when they did not work as well as when they did. Decker was absent about two weeks
In so far as Decker and Jones are concerned it is not possible to separate the work they did for which they might have been entitled to a lien from the nonlienable, and under such a condition of the evidence there was no error in refusing them a lien. A claim for a lien is unavailing for any-purpose when it is impossible to segregate the lienable items from the nonlienable ones. Hughes v. Lansing (1898), 34 Ore. 118, 55 Pac. 95, 75 Am. St. 574; McLain v. Hutton (1900), 131 Cal. 132, 61 Pac. 273, 63 Pac. 182.
Judgment affirmed.
Rehearing
Petition foe Rehearing.
Appellants in their petition for a rehearing contend that we failed to determine the validity of the assignment of the estimates by Harry Newman to the appellee Huntington County Bank. The only reason why we failed to determine that question is because it was not presented to us for our determination. Appellants in their original brief stated that the only question for decision was whether the claims of the appellants should be paid out of the funds before the payment to the bank.
Petition denied.