127 Ind. 436 | Ind. | 1891
The allegations of the appellee’s complaint are, in substance, these: That on the 30th day of September, 1886, the appellant entered into a contract with William Comley, wherein the latter undertook to erect a dwelling-house upon a lot owned by the former; that on the same day the appellee contracted with Comley to furnish the material for the wood-work of the house; that the appellee did furnish materials under the contract to the value of four hundred and twenty-two dollars; that at the time of furnishing the materials he notified the appellant that he was furnishing them to Comley, and that at the time such notice was given the appellant was indebted to Comley in a sum equal to the appellee’s claim; that Comley gave the appellee an order on the appellant for part of the amount due the appellee, but said order was not accepted or paid. It is further alleged that the appellee filed a notice of his intention to hold a lien on the property, and a copy of the notice is filed with the complaint as an exhibit.
We shall consider the objection made to the complaint by the appellant and no other, so that our decision is authoritative upon no other question. The appellant’s counsel thus present their point: “ The only question presented by the appellant in the court below upon the demurrer was as to the sufficiency of the notice. The court will observe that the notice, in reference to the furnishing of material, is as follows: ‘ For work and labor done and material furnished by me in the construction and erection of said house, which work and labor done and material furnished was done and furnished by me at your special instance and request-.’ The complaint is for material furnished to the contractor upon a contract to which the complaint itself shows the owner was not a party, and the appellant insists that a notice is insuifi
It is contended that the finding of the trial court is not sustained by the evidence; but we are unable to concur with counsel in this view. It is settled by our decisions that a verbal notice to the owner from a material man is sufficient. Albrecht v. C. C. Foster, etc., Co., 126 Ind. 318 ; Neeley v. Searight, supra; Vinton v. Builders, etc., Ass’n, 109 Ind. 351. But while a verbal notice is sufficient it must be such as will fairly inform the owner that the material man intends to hold a lien ; it is not sufficient for the latter to inform the owner in a mere casual conversation that he is furnishing material; he must, at least, give the owner such reasonable notice as will put him on his guard, and enable him to take measures to protect himself from loss. Neeley v. Searight, supra; Caylor v. Thorn, 125 Ind. 201. It is, however, not essential that the notice should be given in any precise form of words; it is enough if it conveys to the owner information that the material man intends to hold a lien for his. claim.
Judgment affirmed.