246 P. 372 | Okla. | 1926
This was a proceeding to enforce a mattrialman's lien. It is a special statutory proceeding, and the remedy sought to be applied is equitable in character. No money judgment was sought to be recovered against Isaac Holmes and Carrie Holmes, and in fact none could be recovered under the provisions of the statute. Union Bond Investment Co. v. Bernstein,
"Where the owner of property makes a contract with a builder to erect a building and to furnish lumber therefor, and such contractor purchases the lumber himself, but fails to pay for same, the contractor alone is responsible; and no lien attaches to the building or land upon which it is erected, under section 3862 of the statute, in favor of the creditor. Darlington-Miller Lbr. Co. v. Lobitz,
"The contract between Hamill and Shirley for the erection of the building did not constitute Shirley the agent of Hamill for the purchase of the material. Cahill-Swift Mfg. Co. v. Sayre,
At the close of the evidence in the case defendants demurred thereto and filed their motion for judgment. Both the demurrer and the motion for judgment were overruled. Under the authority of Gentry-Bowers Lumber Co. v. Hamill, supra, the action of the trial court in overruling the demurrer to the plaintiff's evidence and in denying the motion for judgment was clearly erroneous.
For the reasons herein stated, the judgment of the trial court is vacated, and the cause is reversed, with directions to sustain the demurrer of the defendants to the evidence of the plaintiff and to dismiss the action.
By the Court: It is so ordered.