49 Neb. 229 | Neb. | 1896
The defendant in this action filed a mechanic’s lien in the proper office in Douglas county against the property of plaintiff, the account on which the claim of lien was predicated being for work performed and material furnished in and about the sinking of a “tubular” well in the property of plaintiff company in Omaha. This action was instituted by the plaintiff company, the object being to secure the cancellation of the lien, or its removal as an alleged cloud on the company’s title to the property. The defendant filed a cross-bill, or petition, in which he asked that the amount due him from the plaintiff might be ascertained and adjudged, and his lien therefor foreclosed, etc. To this cross-petition the company pleaded and of the issues there was a trial, the result of which was favorable to .the defendant. The company appealed to this court, and on hearing of the case here the judgment of the district co.urt was reversed. (See 44 Neb., 21.) A motion for rehearing was filed and allowed, and the case has been again submitted for decision. There was a sufficiently full statement of the issues, and such facts as were and are necessary to an understanding of the case,
“Joseph Burns: Please sink a tubular well of seven-inch lap welded iron pipe at our vinegar factory in Omaha, and continue sinking the same until yon get a water supply of 2,000 gallons of water per hour, unless sooner stopped by ns. You to furnish all pipe, points, and working barrel and valves, together with plunger rods and all other material necessary to construct and complete the well in a first-class manner to the surface of the ground, and on completion of the work we agree to settle for the same at the rate of ($5.00) five dollars per foot, one-half to be paid in cash and the balance to be paid by our note for ninety days, without interest. We will furnish, at our own expense, the pump, or whatever we may decide to use to raise the water with. It is the understanding of this that you pay all bills for labor and material necessary to complete the work as above, for the above prices, and should the well have to be sunk below 250 feet, then the price shall be six dollars per foot below the first 250 feet, or for the second 250 feet, or any part thereof that it may be necessary to sink the well to obtain the necessary amount of water; and it is further understood that in no case shall the well be sunk deeper than five hundred feet (500) deep, at this price, from the surface of the ground. It is the understanding that when the well is complete as above it shall be paid for as first mentioned, namely, one-half cash and balance in note as above.”
The former opinion, in part, hinged upon the construction therein given to the contract we have just quoted. As we read it, we are forced to conclude: First — That the defendant could, or would, fulfill it (this being the point which we now desire to settle) by sinking the well to such depth as to obtain a continuous flow of 2,000 gallons of water per hour. Second — That the depth could
Pursuant, presumably, to the right given it by the contract to stop the sinking of the well at such time as it desired, the company served defendant with the following-notice:
“To Joseph Burns, IIis Agents, Assigns, and Employes: It is provided in our contract of September 11th that you shall sink a tubular well of seven-inch lap pipe, welded iron pipe, at our vinegar factory at Omaha, and continue sinking the same until you get a supply of 2,000 gallons of water per hour, unless sooner stopped by us.
“We now exercise our right to stop you in accordance with said contract, and hereby notify you to forthwith cease work upon said well, to remove your machinery and tools from our property, and vacate our premises at once.
“J. H. Bariuett,
“President.”
At the time of the service of this notice the well was completed, as to dimensions and being properly cased, to a depth of 145 feet, and had proceeded beyond this some 375 feet. A portion of this latter distance pipe had been used but five inches in diameter, and a paart four inches. In the former opinion the contract was construed as providing that the defendant was to obtain a continuous flow of 2,000 gallons of water per hour, and if he failed to do so within five hundred feet, to receive nothing for what he had done under the contract. We feel forced, at this time, to adopt a somewhat different conclusion in the one particular, i. c., in respect to the flow of water. Doubtless the primary and moving purpose of the company’s entering into the contract was to obtain
It is urged that there was no evidence of authorization by the board of directors of the making of the contract under which the defendant claims, or any right or power delegated to the president by which he could enter into any such agreement for the company so that it would be the contract of the organization. The company, so far as is shown by the articles of incorporation and the evidence, was not one having a seal. The contract was not required to be made by seal. It was admitted in the pleadings filed by the corporation, in answer to defendant’s
By the decree of the trial court the defendant was allowed a lien on the premises of the corporation, under the provisions of chapter 54, Compiled Statutes, entitled “Mechanics’ and Laborers’ Liens,” for the amount adjudged due of his account. The first section of the chapter to which we have referred is as follows: “Any person who shall perform any labor, or furnish any material or machinery or fixtures, for the erection, reparation, or removal of any house, mill, manufactory, or building or appurtenance, by virtue of a contract or agreement, expressed or implied, with the owner thereof or his agents, shall have a lien to secure the paj^ment of the same upon such house, mill, manufactory, building, or appurtenance, and the lot of land upon which the same shall stand.” It is the established doctrine of this court that this section shall be given a liberal construction, so that, whenever practicable» thereunder, the mechanic, laborer, or furnisher of materials may be afforded a remedy for the enforcement of the accounts due them. But the improve
The former opinion, insomuch as it conflicts with this one, is overruled. The defendant may, within forty days, file a remittitur of the sum of $1,430.50 of the amount adjudged due him by the decree of the district court, as of the date of such decree. If he does so the decree will be set aside to the extent of its allowance of a mechanic’s lien, and, as thus modified, it will be affirmed, and a decree will be entered in this court canceling the lien of record. If the remittitur is not filed the decree of the district court must in all things be reversed.
Judgment accordingly.