22 Ind. App. 175 | Ind. Ct. App. | 1899
— This action was commenced by appellee, Thomas C. Stephenson, against the Golden Rule Oil Company, James D. Goodin, the Montpelier Light & Water Company, Homer C. McMahon, and Elijah H. Montgomery, to foreclose a mechanic’s lien for work done and materials furnished in the erection of a derrick to be used in the drilling and operating of an oil and gas well, and to be a part of said well. The holders of a gas lease contracted with appellee Stephenson to labor upon, and furnish material for a derrick, to be erected upon the premises covered by the lease, and with appellee Montgomery to furnish materials for the same. Both filed liens for the amount of their;claims. Montgomery was made a defendant, and by his cross-complaint asked to foreclose his lien. The lease contained a forfeiture clause providing that it should become void in the event that no well was completed within sixty days from the date of its execution. The cause was put at issue as to the complaint and cross-complaint, a trial had by the court, and, upon proper request, a special finding of facts made and conclusions of law stated thereon. McMahon and the Montpelier Light & Water Company each excepted to each conclusion of law, and filed their separate motions for a new trial. These motions were overruled and judgment rendered against appellee, Golden Rule Oil Company, in favor of Stephenson and Montgomery on their respective claims, and ordering the sale pi any interest the Golden Rule Oil-Company had in the oil and gas leasehold as described in the complaint and the cross-complaint, and that the proceeds should be applied, after the payment of costs, to the payment of the claims of said Stephenson and Montgomery. Appellants each filed a motion to modify the judgment. Both motions were overruled and exceptions taken.
Appellants have assigned errors jointly and severally. Under the assignment of errors appellants discuss: (1) The sufficiency of the complaint; (2) the sufficiency of the cross-complaint; (3) the action of the court in sustaining demur
The first objection urged to the complaint is that it fails to set out the particulars of the contract sued upon, and to set out a bill of particulars. The objection is based upon section 365 Burns 1894, which provides that, where a pleading is, founded on a written instrument or an account, the original,, or a copy thereof, must be filed with the pleading. The complaint states that a bill of particulars is filed therewith, but. it nowhere appears in the record. If the bill is necessary, the statement that it is filed will not supply its place. Ricketts v. Braun, 42 Ind. 316. The contract was verbal to do-certain work for an agreed price. The part of the complaint pertinent to this objection is as follows: “That on the — day of May, 1896, the plaintiff entered into a contract by which plaintiff was to construct on the above described premises a derrick to be used in the construction and operation of an oil and gas well and to be a part of such well. That in pursuance of said agreement the plaintiff constructed said derrick and performed labor and furnished material thereon of the value of $109.81, which sum defendant Golden Rule-Oil Company agreed to pay him therefor, — a bill of particulars of which is filed herewith and made a part of this, complaint, — which labor was performed and which material was used in the erection of said oil and gas well, the last of' which material was furnished and the last of said labor performed on the 20th day of May, 1896. That said oil well was completed before the commencement of this action.”
Appellants cited Stephenson v. Ballard, 50 Ind. 176, which was a suit to foreclose a mechanic’s lien, in which thn
The complaint before us alleges that plaintiff contracted to do a particular work for a certain price, and that the work was completed before the commencement of the action. The distinction between the complaint in the case cited and the case before us is obvious. The office of a bill of particulars is to specify more minutely the claim or defense set up. As the complaint avers a contract to do certain things for a particular sum, and that the contract had been performed, a bill of particulars was not necessary.
The second objection made to the complaint is that the Golden Rule Oil Company, at the time of appellee’s employment, held a lease upon the real estate of one James B. Godin, a stipulation in which lease is as follows: “In case no well is completed within sixty days from this date then this grant shall be null and void, unless the second party shall thereafter pay at the rate of $2 per day for each day said completion is delayed,” and that the complaint does not aver that the well had been completed within sixty days from the execution of the lease, or that $2 per day had been paid from the expiration of said sixty days until a well was completed.
The sufficiency of the complaint and the cross-complaint is challenged upon the same grounds. Demurrers to them were properly overruled.
Appellants next discuss: the action of the court in sustaining appellee Stephenson’s demurrer to the second paragraph of appellants’ answer to the complaint. The complaint states that defendant Godin executed a lease to N. A. Walker & Company, which was assigned by the latter to the said Golden Rule Oil Company; that said company employed plaintiff to build a derrick and furnish materials therefor upon said lease; that plaintiff performed such labor and furnished materials, and filed notice of his intention to hold the mechanic’s lien sought to be foreclosed. The answer admits the execution of such lease, and avers that it was stipulated therein that in case no well was completed within sixty days from the date of the lease, the same should become null and void unless the lessee should thereafter pay at the rate of $2 per day for each day such completion was
The remaining specification in the assignment of error discussed by appellants is that the court erred in its conclusions of law on the finding of facts. Under this specification •counsel insist that there were no special findings of fact which support or tend to support either the second or fourth conclusions of law, which conclusions are respectively that “the, plaintiff’s (appellee Stephenson) and the defendant Montgomery’s (appellant) lien be foreclosed against said well as to all of the defendants and against any interest the defendant Golden Rule Oil Company may have in said leasehold property, well and attachments described in the complaint and cross-complaint respectively.” It is insisted that there is no finding of fact that a well had ever been drilled by either the lessees BT. A. Walker & Company, or by their assigns, the Golden Rule Oil Company, on the leasehold premises as stipulated by the terms of said lease, so as to keep the lease alive; and that in the absence of such finding the appellees Stephenson and Montgomery can have no enforcement of such lien. The rights of appellees would not be defeated by the failure to drill a well or wells. The findings show that appellees Stephenson and Montgomery performed labor and furnished materials for the purpose and of the value as set out in the complaint and cross-complaint respectively. That McMahon, with full knowledge that the materials had been furnished and labor had been performed, did on the 2nd day of July, 1897, lease said premises from Godin, “and appellant the Montpelier Light and Water Company purchased the same,” and “that the title
The conclusions of law must therefore be considered without reference to the alleged forfeiture of the lease, there being no finding of forfeiture, or the well, assumed in the conclusions of law, to have been drilled. The indefiniteness of the special findings is of form rather than substance. So far as it and the judgment rendered thereon are defective, it does not affect injuriously the rights of appellants; but appellees are entitled under such findings, to a foreclosure of the interest of appellants in the leasehold premises on which the derrick and its attachments were located. If within the premises described in the complaint, to which the lien for work and labor attached, there is a well, it is necessarily included in this decree, and subject to sale as a part of it, and incident to such leasehold. Judgment affirmed.