75 Neb. 212 | Neb. | 1905
This was an action to foreclose a mechanics’ lien for materials furnished and used in the construction of a building on a lot in the city of Omaha, Nebraska, owned by the defendant Storz Brewing Company. There was a judgment for the plaintiff in the court below, from which the defendant brewing company appeals to this court.
There is no disputed question of fact in the record. The material sued for was furnished to James P. Detrick, who had a contract with the defendant brewing company for the construction of the building in which the material was used. Detrick was made a defendant in the court below-
“While as betAveen the debtor owing several debts and his creditor where the former, at the time of payment of a sum of money, fails to designate the debt on AAdiich it is to be applied,.the latter may do so, yet there is an exception to this rule, as, Avhere the money was received by the debtor from a third party whose property Avould be liable for the debt in case the money was not applied upon the third party’s liability.”
It is urged, however, by the appellee that as the answer of the defendant bmving company was in the nature of a general denial of the lien, it cannot avail itself of a defense of a payment Avithout having specially pleaded such defense. Here again we think the appellee is invoking a rule that would- control as between the parties to the contract for the purchase of the material, but not as betAveen the material man and a third party Avhose property might be affected by a lien for such material. The right to a lien for material furnished a contractor and used in the con
It is therefore recommended that the judgment of the district court be reversed and the cause remanded, with directions to enter an additional credit for $46.23 in favor of defendant Storz Brewing Company, as of the date of August 5, 1901, the time at which said payment was made.
By the Court: For the reasons given in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause remanded, with directions to enter an additional credit for $46.23 in favor of defendant Storz Brewing Company, as of the date of August 5, L901.
Reversed.