28 Neb. 231 | Neb. | 1889
° This case was appealed from the district court of Douglas county.
The appellant exhibited a bill in the court below against the firm of Pheby & Turner, builders, of Omaha, and H. A. Reichenbach, Neis Christiansen, A. G. Christensen, A. Busch, and S. P. Sorenson, trustees of the Danish Baptist church, of Omaha, unincorporated, and Isaac Williams, Silas S. Hansen, Dow & Mclver, partners, etc., and Caroline C. Yan Namee, defendants and appellees, alleging that on February 24, 1888, Pheby & Turner contracted with the trustees and building committee of the Danish Baptist, church, of Omaha, to erect for said church and said committee a church building, for religious worship, on lot 3 of block 11 of Parker’s addition to the city of Omaha, and to furnish the materials therefor. In pursuance of which they purchased of appellant materials for the construction of the church building amounting to $295.32, which amount has never been paid, and is now due; that at the time of furnishing the materials, the owner of record of said lot was Caroline C. Yan Namee, but that the Danish Baptist Church Society, and the trustees thereof, were the true and actual owners by lease or gift, but the precise nature of the title is not of record; that on May 31, 1888, within sixty
The plaintiff below prayed judgment for the sale of the property, upon the adjustment of the liens, and rights of all parties made defendants.
The defendant Van Namee answered, denying all allegations of the bill not expressly admitted; she admits that a church building has been erected on the lot described, and ■states that she is the owner of said lot; that on April 19, 1887, she leased the same to Taylor Turner for the term of five years from that date; that on April 7, 1888, she gave her consent to Turner to transfer his interest to S. P. Sorenson, which was executed by lease, of which Sorenson holds possession, and that she never authorized the erection of any building thereon.
The defendant Hansen answered, denying all allegations of the bill not expressly admitted; he admits that Pheby & Turner built a church building on the lot described^ under a contract with the trustees of the Danish Baptist church, of Omaha; that as to how much material the plaintiff furnished the contractors, if any, he has no knowledge; that he has a lien upon the building for work and labor thereon of twenty-two and one-half days at an agreed rate of wages of $2.50 per day, employed by the contractors and builders, amounting to $56.25, due April 28, 1888; that on May 2, 1888, he filed his claim, in accordance with the statute, in the register of deeds’ office of said county, perfecting a mechanic’s lien on lot No. 4, through error and mistake, and that the building is located on lot No. 3, block 11; that on May 14. following, he
The defendants Christensen, Busch, and Sorenson answered, jointly, that .they were acting as a committee for said church in erecting the building spoken of; that they are informed that the plaintiff claims a lien for lumber and material furnished, but do not know nor admit the amount, nor that he filed it for a mechanic’s lien within sixty days, as alleged; that neither of the defendants owns said property ; that the church has no lease or right upon the lot, save a verbal license to remain, and pays no rent; that they paid to Pheby & Turner the full sum due upon the contract for the building, and that defendants Williams and Hansen were present at the time of payment, and made no objections — they had. been .notified to be present and get their pay.
The defendants Dow and Mclver answered that they were not informed as to the truth of the allegations of the bill, save that it is true that they have a lien upon the property described, also east fifty feet in Bedford Place, an addition to the city of Omaha, for the sum due them of $5.70, and pray judgment therefor.
The plaintiff replied to the answer of Hansen admitting that he laid his claim on lot No. 4, and that lot No. 3 is that on which the building was erected, and denies all allegations set up in the answer; to the answer of Dow and Mclver he had no knowledge of the matters stated; and to that of Van Namee he denies that she never authorized the erection of the church building on said lot, and admitting that she holds the fee of the premises, reiterates that the church organization, or committee, has an interest therein, under which the building was erected.
Subsequently, the defendants Pheby, Turner, and Williams, having been duly served with process, made default, and upon trial to the court the findings were for the de
II. That Dow and Mclver are entitled to a mechanic’s lien for $12.50 for work and material furnished the cpntractor and used upon the building.
III. That Silas S. Hansen is entitled to a mechanic’s lien for the sum of $56.25.
IV. That the Danish Baptist church is in possession of the land described, under a verbal lease, and is the owner of the church building situate thereon; that the liens of said two defendants attach to, and are liens upon, the interest of said church in said lot and building. The plaintiff’s bill was dismissed.
It was further ordered that said mechanic’s liens be foreclosed, and that the Danish Baptist church, within thirty days, pay the amounts severally found due, and pay the costs; and in default that its interests in the premises, and the building thereon, be sold as the law directs, and the proceeds applied to the payment of the costs of suit, and of the sale, and the payment of the liens, saving as to the plaintiff’s costs adjudged against him. To all of which the plaintiff excepted of record.
The counsel on either side, in their briefs, agree that the chief, if not the sole, ground upon which the trial court found against the plaintiff aud denied his right to a lien in the case was, that there was not sufficient evidence of the delivery of the building material, set out and itemized in the bill of particulars, to Pheby & Turner, the contractors, at or upon the site of the building. Upon carefully looking over the pleadings and evidence, I can see no other ground upon which such decision can be based.
Plaintiff, in his petition, squarely alleges the delivery of said materials by the plaintiff at said church building for the purpose of being used in the erection of the same; that they were furnished at the dates set out in said account. These allegations, under the law and rules of pleading,
'The plaintiff,, however, introduced evidence of his having sent all of the material from his lumber yard to the ground upon which the church was being erected. This material amounted to eighteen wagon loads, or parts of loads. The plaintiff testified that with each load, or part of load, he sent a ticket, or memorandum receipt, to be signed by the contractors and returned; and he introduced eighteen of these memorandum receipts which are attached to the bill of exceptions. Ten of them are signed by one of the contractors and his signature sworn to be genuine; one of them is signed S. Sorenson, one of the trustees of the church. Seven of them were unsigned, but each unsigned one contains a memorandum that at the time of the delivery there was “no one at the building” and which memoranda were testified to by the plaintiff to have been made by the drivers of the teams carrying such loads respectively. One of these memorandum receipts, which is signed by G. Pheby, one of the contractors, contains a memorandum on its face indicating that the material constituting that load was delivered at the shop of the contractors. In the case of Foster v. Dohle, 17 Neb., 631, there was a special finding in the trial court of the amount and quantity of lumber delivered by the plaintiff for the use of the building, and (2)
The doctrine of the above case, as I understand it, is, that, in a case similar to the one there put, the builder would be liable for such material as was actually put into the building, and might be held liable for material not actually put into the building, if those furnishing it to the contractor acted in entire good faith, and the material was de
In my view the plaintiff Was entitled to a judgment establishing and foreclosing his lien, upon the pleading, and that, had he not been, the evidence in support thereof was sufficient.
No judgment can be rendered in this proceeding against the defendant Caroline C. Van Namee, and the lien hereinafter ordered will extend only to the lease-hold interest in the said lot of the Danish church, and of Sofen P. Sorenson.
The judgment and decree of the district court, in so far as the petition, claim, and lien of the plaintiff is in any manner concerned, is reversed and a judgment and decree will be entered in this court in favor of the plaintiff in strict conformity with the prayer of his petition, as above limited, in its application.
Judgment accordingly.