32 Neb. 24 | Neb. | 1891
This is an action to foreclose a mechanic’s lien.
Pulliam, Dickey & Paul entered into a contract with Allen H. Fitch to erect a dwelling house for him and his wife in the city of Omaha, for the sum of $7,244. The contractors could not, or at least did not, enter into a bond for the completion of the building according to the plans and specifications, and to pay the laborers and material-men. - In lieu of this, however, the Fitehs allege in their answer to the petition: “ That said Pulliam, Dickey & Co.
The testimony tends to show that the plaintiff, if the contract was let to Pulliam, Dickey & Co., proposed to furnish the lumber for the buildings and waive his lien upon the buildings. A memorandum was drawn up by the plaintiff Eitch and Pulliam. This, however, merely . contained what purported to be the terms of the agree
Q,. You say now Mr. Irish agreed to reduce it to writing, sign it himself, and send you a copy ?
A. For my signature.
Q,. Didn’t you swear yesterday he was to reduce it to writing and both sign it and each keep a copy?
A. Words to that effect.
The other testimony in the record tends to show that the agreement was to be reduced to writing and signed by the parties before it took effect. When such is the case the agreement will not be binding in law until it is duly signed. (Chinnook v. Marchioness of Ely, 4 D. J. S., 638, 646; Water Comm’rs v. Brown, 32 N. J. L., 504; Eads v. Carondelet, 42 Mo., 113; Morrill v. Tehama Co., 10 Nev., 125; Congdon v. Darcy, 46 Vt., 478; Fredericks v. Fasnacht, 30 La. Ann., pt. 1, 117; Bourne v. Shapleigh, 9 Mo. App., 64; MacMackin v. Timmins, 30 Alb. L. J., 56; Hough v. Brown, 19 N. Y., 111; 3 Am. & Eng. Ency. of Law, 854.) The fact that the parties stipulated to reduce the agreement to writing, which was to be signed by the parties, is strong evidence to show that they did not intend the agreement to be complete until reduced to writing and signed. (Ridgway v. Wharton, 6 H. L. C., 238; Lyman v. Robinson, 14 Allen, 242; Brown v. R. Co., 4 N. Y., 79; Methudy v. Ross, 10 Mo. App., 101; 3 Am. & Eng. Ency. of Law, 855.)
The case at bar furnishes an illustration of the necessity for reducing a contract of that kind to writing, and both parties sign the same, as the parties wholly disagree as to the terms of the alleged memorandum. The building seems to have cost very much more than the contract price. Just.what changes were made in the plans and specifications is not clear, nor are they material in this case. Mr.
The defendants whose names are not mentioned in this opinion are alleged to be lien-holders and their rights are not affected.
The judgment of the court below against Allen Fitch and wife is reversed, and a decree will be entered in this court for the amount due the plaintiff, and for foreclosure of his lien upon the property.
Judgment accordingly.