84 Neb. 422 | Neb. | 1909
This is an appeal from Douglas county, wherein the plaintiff, in pursuance of chapter 54, Comp. St. 1907, sought to foreclose a mechanic’s lien upon property owned by the defendants Joseph Yachal and Anna Vachal, his wife. The defendant Prank Kobiela is a contractor who purchased the building material from the plaintiff and erected the building upon the property in question for his codefendants.
The petition states, in substance, that the plaintiff in
Joseph Yachal and his wife, Anna, filed a joint answer consisting of a general denial, but admitting the ownership of the property, • and alleging they entered into a contract with their codefendant Kobiela for the erection of a building on the property in dispute, and that on January 11, 1905, they paid him the balance due on the contract. Kobiela filed no answer, but was defaulted, and a personal judgment was rendered against him for $390.23. The action was dimissed as to the Yachals, and from the judgment of dismissal plaintiff appeals.
The undisputed proof shows the last delivery of material upon the Vachals’ premises by plaintiff prior to January 24 was on November 30, 1904, and that the verified and itemized statement of material furnished by plaintiff was filed for record March 21, 1905, so that the validity of the lien depends upon the delivery of material for the building on January 24, 1905. On the part of plaintiff, J. B. Watkins, one of the partners, testified that on January 24 Kobiela came in person to the plaintiff’s place of business and ordered for use upon the Vachals’ building 12 feet of sash sticking of less value than $1 and that plaintiff delivered it upon the premises of the Yachals the same day. Watkins’ testimony is corroborated by W. H. Beckett, salesman and bookkeeper for
The testimony of Kobiela shows that he is endowed with an eager willingness, and upon slight provocation, to create or to enter into any scheme that occasion may offer for the purpose of getting the better of his felldwman; but it appears to us that the unlawful scheme concerning which he testified as having been agreed upon between himself and Watkins was not even presented to
Defendants’ counsel argues that appellant received money from Kobiela that was paid to him by the Yachals, and that it was applied by plaintiff to Kobiela’s credit for lumber on other buildings which he was then constructing, and in support of this point the testimony of Kobiela is cited. Notwithstanding the unsatisfactory character of Kobiela’s testimony, we have examined carefully that part of it referred to upon this point, and to the mind of the court it does not bear the construction thus placed upon it. Kobiela’s attention was called, on redirect examination, to certain checks received by him from the Vachals, and was asked if he knew what part, if any, of these checks was paid to Mr. Watkins, and he answered that he didn’t know, but he expressly says, when asked if a part of the Yachal money was paid to Watkins on other jobs, “I would not say that. It might. I believe I paid some money out of this, out of Yachals’
From all the evidence we conclude the plaintiff furnished the material for the erection of the store building on the Yachal premises in entire good faith and is entitled to the establishment of its lien in accordance with the prayer of its petition. It is a familiar rule that, where a contract is entered into between parties with reference to an existing statute, such statute thereby becomes a part of the contract. Sessions v. Irwin, 8 Neb. 5.
The Yachals attempt to show that the plaintiff misled them and permitted them to make final settlement with their codefendant Kobiela without a proper effort on its part to protect them in payments made to the latter; but there is lacking a motive on the part of plaintiff thus to mislead them, except upon the theory of the existence of an unlawful- agreement between Kobiela and plaintiff, and this we have seen is without foundation. Defendant’s counsel cites Searle & Chapin Lumber Co. v. Jones, 80 Neb. 567, but the opinion does not support his argument.
From a careful examination of the entire record, we are at a loss to discover the theory upon which the learned trial court dismissd the action as to the defendants Joseph and Anna Yachal. The judgment, therefore, dismissing the action as to .them is reversed and the cause remanded, with directions that the lien of plaintiff upon the premises of the Yachals, which are described in the decree, be established in accordance with the prayer of the petition, and for the amount, bearing interest, for which judgment was rendered by the trial court against
Judgment accordingly.