21 Ind. App. 277 | Ind. Ct. App. | 1898
On the 10th day of May, 1897, William White, a resident of Grant county, Indiana, duly executed and acknowledged a deed of assignment in accordance and compliance with the laws of this State providing for voluntary assignments for the benefit of creditors. In the deed of assignment one Phillip Matter was named as trustee. Among the property conveyed to said trustee by the deed of assignment was the following: Forty-four feet off of the south side of lot 8, in block 16, in the original plat of the town (now city) of Marion, in Grant county, Indiana. ' Situated upon the above described tract was a three story brick building, used in part as an opera house. On the 5th day of May, 1897, the said William White executed to his wife, one Hattie White, a mortgage upon said real estate, to secure an alleged indebtedness to her of about $15,000, which mortgage was duly recorded on the 5th day of June, 1897, in the recorder’s office of Grant county, in mortgage record No. 34, at page 463. On the 22nd day of May, 1897, appellants Phillip Patton and John M. Thornburgh, who were partners doing business under the firm name and style of Patton & Thornburgh, filed in the office of the recorder of said county a written notice of their intention to hold a mechanic’s and material man’s lien on said real estate and the buildings thereon for moneys due them on account of work, labor, and material, done, performed, and furnished by them in repairing
Appellants Patton & Thornburgh, Byrely & Byrely and Whisler & Whisler separately assign as error to this court, the action of the lower court in overruling their separate motions for a new trial. Upon the part of the cross-complainants, the appellants Patton & Thornburgh, the evidence was to the effect that they were employed by verbal agreement to tear out the third floor joists, overhaul the building, and make it into an opera house on the second floor. This employment was in June, 1896, and they were engaged to do the work by William White. It is admitted of record as to all the cross-complainants: That the said William White was the owner of the property described in all the cross-complaints up to the 10th day of May, 1897, when the same passed by the assignment to Phillip Matter. The said firm of Patton & Thornburgh continued to work on said building until March 26, 1897, with very little interruption, and without any settlement being had between the parties. That all the work and material charged in the bill of particulars filed with the cross-complaint was done and furnished at the direction and instance of the owner of the building, and that there is due said firm the sum of $1,557.75. There were no plans and specifications to work by, and these appellants Patton & Thornburgh were simply employed by said White, without any agreed price either for labor or material furnished by them, and did the work as they were directed by the owner of the building. The evidence shows that they continued in the work upon said building up to and including March 26, 1897, and that the notice of their intention to hold a lien for their labor and material was filed within 60
The situation in this cause is such that if any one of the cross-complainants is entitled to the relief asked, they are all entitled to such relief. Under the evidence, they all have practically the same case. After a most careful examination of all the evidence in this cause and of the authorities controlling the questions arising thereon, we are firmly convinced that the finding and judgment of the lower court as to each and all the appellants is contrary to law. The evidence shows that appellants’ accounts were open and running accounts, and had not been closed either by payment, settlement, or completion of the work. They each show an item of labor done, or material furnished, within the statutory period for filing the notice of intention to hold a lien. The contract of employment in each case must be treated as continuous, there being no certain time for payment, no certain amount agreed to be paid, no certain and specified amount of work to be done, and no certain time when the services should end. The fact that the work was interrupted, or any certain parts of it completed, would not make it necessary, under our statute,, for the claimants to file a notice and acquire a separate lien for each part and parcel of the work; and the notice, when filed within the statutory limit of time dating from the last item of work done or material furnished, will reach back and include all the items charged under the general employment.' In the case of the Premier Steel Co. v. McElwaine Richards Co., 144 Ind. 614, one of the findings of the lower court was as follows: “In 1892 said company was engaged in making Extensive improvements upon said real estate, and notified appellee that it would need therein a large amount of steam, gas and water pipes, ma