37 Neb. 879 | Neb. | 1893
This was an action brought by appellant to enforce a mechanic’s lien for materials furnished by R. A. Handy & ; Co, under a verbal contract with the defendant James .Kenneally, for the erection of a dwelling and-barn on lot .10, in block 2, in Summerdale addition to the city of Lincoln. Plaintiff claims as assignee of the account and me:chanic’s lien. ■ Kenneally was the owner of the lot when ;the materials were furnished. Subsequently, on August 28, 1888, he mortgaged the premises to the defendant James Wool worth to secure the payment of $800, at the time borrowed. On the 22d day of November, 1888, the defendant Thomas McAlpine purchased said premises from Kenneally, subject to the payment of said mortgage. The district court rendered a personal judgment in favor of plaintiff, and against Kenneally, for $743.37, and decreed .that plaintiff was not entitled to a mechanic’s lien for any .amount. Plaintiff appeals.
No question is made in this court by any one as to the amount of the judgment rendered by the court below, the '.sole contention here being whether the court erred in not decreeing that plaintiff had a valid lien upou the real estate for the amount so found due him. Appellees urge numerous objections against the right of plaintiff to a lien, which .we will notice.
It is claimed by counsel for appellees that there is neither ;proof that the materials charged in-plaintiff’s account and claim for lien were ever furnished by Handy & Co., nor is there any evidence of the value of the same. While the ■testimony on the subject is quite meager, we are of the opinion that it sufficiently appears that Handy & Co. furnished and caused to be delivered, on the lot in question, all the materials which were used in the construction of the «house and barn. The. only evidence as to value was that given by Mr. Sable, one of the carpenters who erected the
It is said that there is no proof that a claim for lien was filed with the register of deeds. The petition alleges that, on the 31st day of December, 1888, and within four months from the time of the furnishing of the materials, R. A. Handy & Co. made, under oath, an account in writing of the materials, and filed the same in the office of the register of deeds of Lancaster county, claiming a mechanic’s-lien therefor upon said premises, which lien was recorded in book D of mechanics’ liens at page 349. The above allegation being put in issue by the general denial in the answers of appellees, it devolved upon the plaintiff to establish upon the trial, by competent evidence, the filing of the claim for lien. This he failed to do. The mechanic’s lien records of Lancaster county were neither produced at the trial, nor offered in evidence. Plaintiff, over objections of defendants, introduced in evidence the lien attached to his petition as an exhibit. While it contains an indorsement purporting to have been made by the register of deeds, showing the filing and recording of the paper, yet the indorsement was not offered in evidence. Plaintiff' should have made his offer sufficiently broad to have included the introduction of the indorsement of the filing of' the statement of lien.
In this state one who seeks to enforce a mechanic’s lien is required to file a verified account of the materials furnished or labor performed, for which a lien is claimed, in the office of the register of deeds, within four months after the furnishing of the last item of materials, or the performance of the labor. The filing operates as a creation of the lien, and unless this is done, his right to a lien is lost. As there is a total failure of proof that any claim for lien was filed by plaintiff’s assignors with the register of deeds, plaintiff was not entitled to have a lien established on the premises in controversy.
The transfer of the debt before filing the claim for lien extinguished the right to a lien on the premises. Handy & Co. could not afterwards perfect a lien, for the reason they had disposed of their claim, nor could the plaintiff do so, since the assignment of the debt did not have the effect to transfer a right to perfect and enforce a lien therefor. (Goodman v. Pence 21 Neb., 459; Tewksbury v. Bronson, 48 Wis., 581.)
In Goodman v. Pence, supra, this court held that the mere assignment of the account for labor performed and materials furnished for the erection of a building will not give the assignee the right to assert a mechanic’g lien therefor. The court in the opinion says: “ The mere performance of labor or furnishing material to another is not sufficient to entitle a party to a mechanic’s lien. His right to the same depends upon compliance with the statute. Until he has so complied he has no lien which he can assign. When, however, he has acquired a lien, he may assign the same with the account to another. In other words, a mere inchoate right to a mechanic’s lien is not assignable, although the lien when acquired passes with an assignment. * * * If the mere assignment of the debt gave the assignee the right to assert the lien, then in cases where portions of the debt were assigned to different persons each must file alien for the amount due to himself, and thus instead of one lien against the property, there might be fifty, or an in
.. True, the mechanic’s lien law should be liberally construed, so as to carry out the intent of the legislature in ..passing it; but the provisions of the law are not to be extended in their operations beyond the fair and reasonable sense of the terms employed. To obtain a lien there must ,be at least a substantial compliance with the requirements •of the statute by the mechanic or material-man. It requires that the person entitled to the lien shall make out . and file an account in writing of the items of labor or materials furnished. It contemplates that the person furnishing the materials or performing the labor shall perfect the lien, and this he must do before he transfers or assigns the debt to another, for, after such transfer, he no longer has such an interest as will authorize him, by complying with the statute, to obtain a lien.
It further claimed that the statement of the account is insufficient, in that it fails to state with sufficient particularity the times when the materials were furnished as the basis for the lien. The account, after giving the number and kinds of materials furnished, contains the following: “The above items were sold for $677.65, and delivered between July 10, 1888, and October 18, 1888.” The affi- , davit attached to the account states “ that said materials . were furnished by R. A. Handy & Co. to said James Kenneally at the times stated in said account.” Neither the account nor the affidavit contains any other reference as to the dates of the furnishing of the materials. Authorities are cited in brief of counsel for appellees which, at first blush, appear to sustain their contention that the specification of the times when the materials were furnished is so vague and uncertain as to invalidate the lien, as between the
Affirmed.