37 Neb. 272 | Neb. | 1893
This appeal has already received the consideration of this court, as will appear by a reference to 31 Neb., 585, where will be found the opinion of Cobb, J., reversing the decree of the district court of Cass county. A rehearing having been granted, it is necessary that the decree appealed from be examined anew in the light of the evidence upon which the cause was originally heard. In the transactions to be considered there are two corporations, co-defendants, the names of which are so similar that-, without
Q,. The Plattsmouth Land & Improvement Company sold a portion of this ground out there known as the Livingston Heights to the Plattsmouth Land & Investment Company ?
A. No, sir; the Plattsmouth Investment Company had a contract.
Q,. When was that done?
A. I could not tell you without referring to the contract.
.. Q. Do yo.u remember about the date?
Q,. Was that done prior to the time' of the building of the Park House?
A. Yes, sir.
Q,. How long prior?
A. As far as dates is concerned I could not give it tó you exactly, but it seems to me it was some little while previous to that time; the contract will, of course, show, but I don’t remember the dates. * * *
Q,. They (the investment company) have no interest in the real estate at present?
A. Nothing, only that they hold a contract, and the payment they made they have an equity in it.
Q. Do you know what interest they have in it?
A. I could not say at present; I know I could not tell you at present, it would be impossible. If you will allow me I can explain possibly so you can understand it; the fact of the matter is they have no interest in it.
Q. These improvements done by the investment company were done with the' knowledge and consent of the improvement company ?
A. No, sir; they had nothing whatever to do with it.
Q. Did they know of it?
A. I suppose they knew we had bought the ground of them by contract. I expect they knew we were trying to-boom the property, and they knew we were going to build.
Q,. Have their interests in this contract ever been closed out in any way, the improvement company’s interest under the contract?
A. No, sir.
Q. It just stands under contract still?
A. Yes, sir.
Q,. You do not know how much the Plattsmouth Investment Company paid under that contract?
A. I could not say exactly; no, sir.
Q. Was the contract made a matter of record between
A. Yes, sir; and it is in the record in the office of the company; of course we can record a contract, as I understand it, without being acknowledged.
Q. You mean of record in the county clerk’s office?
A. No, sir.
Question by the -court: Do you know about how much they paid the investment (improvement ?) company on that contract?
A. It seems to me it is in the neighborhood of $1,100; I don’t know exactly. The company has never paid any interest to the Plattsmouth Land & Improvement Company; they have never been able to, because the stockholders refused to pay.
Q. What was the contract price?
A. I don’t know that without referring to the contract.
From this testimony it seems established that at the time when the contract was made.to build the Park House the Plattsmouth Investment Company held a written executory contract for the purchase of the real property upon which the Park House was to be built; that it had possession and control of said real property and has paid on its purchase price about the sum of $1,100; though at what date is entirely left to conjecture. It seems probable also that the Plattsmouth Land & Improvement Company had knowledge of the design of the investment company to boom the property, and with that view the Park House was to be built. Whether or not the Plattsmouth Laud & Improvement Company was more directly interested than above in the promotion of this enterprise is the question essential to the determination of this appeal.
The foregoing evidence' of Dr. Hertzman was presented with a promise to define his relation to the two Plattsmouth 1 companies above referred to, which, as it will now appear, ' is a matter of some little difficulty. Testifying, he said,
Another personage who conspicuously figures is Dr. Samuel D. Mercer, who in July, 1887, when the contract (was made with Pickens for the erection of the Park House, .was president of the Plattsmouth Land & Improvement Company, and was originally its treasurer. The contract . .which Mr. Pickens entered into for the erection of the Park House was in writing, and in terms was with the Plattsmouth Investment Company. In relation to its in- . ception, Mr. Pickens testified, in substance, that the first notice he had that the building was going up was in the early part of June, 1887, when Dr. Mercer sent for witness and gave him the plans and specifications for the Park ¡ House to be erected on Livingston Heights. The evidence of this witness continued thus:
¡ Q,. Is this property described and known as Livingston ■ Heights the property I have read ?
A. That is what he told me — Livingston Heights or ■ Rural Park. I took the plans and specifications and looked
Lest it might be understood that Dr. Mercer was one of the partiés who came down, it is only fair'to státé that such was not the case. 1 ’
; -Mr. Pickens also testified as'follows':.
Q. Now, have you demanded payment?
A.' Yes, sir.
Q. 'From whom?
Q. Who, Mr. Gratton?
A. Yes, sir.
Q,. Which company, do you know V
A. I don’t know; I think he signed it the Plattsmouth Land & Investment Company.
Continuing further the witness Pickens testified as follows :
Q. State whether you did contract with Dr. Hertzman and these other men.
A. Dr. Mercer was the man who gave me the plans and specifications in the first place to figure on the Park House plans and specifications which I brought down here and he told me to send them back just as soon as possible, that he needed them. He proposed to get some other figures.
Q,. Who was you building this building for? Did you know at that time?
A. Yes, sir; I presumed it was for Dr. Mercer and the Plattsmouth Land & Improvement Company or Investment Company, or whatever they call themselves. I did not know what they were.
Q. Was Dr. Mercer down there while you was putting these improvements on there?
A. No, sir.
Q. Did you see him at any time after he gave you these plans?
■ A. Yes, sir.
Q,. Did' you talk to him about what you were doing? ■
A. Yes, sir.
Q. Did he know you were putting those improvements there?
A. Yes, sir; he knew they had went there; I did not see him while we were putting them there but he knew they
The confusion which existed in the mind of Mr. Pick-ens as to the name of the exact party for whom he was erecting this building, from the foregoing evidence, will seem pardonable. In the first place, the Plattsmouth Land & Improvement Company, the holder of the legal title, •contracted to sell a portion of the real property to the Plattsmouth Investment Company, which latter company having taken possession of the property with a view of. erecting improvements thereon and booming it, contracted with Pickens to erect the Park House. Dr. Hertzman and Dr. Mercer occupied the same office. When Mr. Pick-ens visited this office, Dr. Mercer, who at that time was president of the Plattsmouth Land & Improvemeift Company, handed to Mr. Pickens the plans and specifications for the erection of the Park House, and seems to have spoken of the building about to be erected in such terms as would naturally lead Mr. Pickens to infer that the work was to be performed for the' Plattsmouth Land & Improvement Company. It is true the written contract, when formulated for the signature of Mr. Pickens, recognizes only the Plattsmouth Investment Company as the party with whom he was to contract. This company had possession of the property; has advanced at some time $1,100 for the purchase of it. Its interest has not yet been foreclosed, though the testimony of Dr. Hertzman, its secretary, is that the rights of the investment company have been forfeited. It seems to ns upon a review of all the facts in this case, that the conclusion is unavoidable, that these companies were engaged in a joint enterprise, to-wit: the booming of this property; that in furtherance of the interest of both parties this contract was made for the erection of the Park House by the Plattsmouth Investment Company, as well as by the Plattsmouth Land & Improve
The owner of the lot, Kountze, having stipulated that improvements of a certain kind should be made thereon, -by one who held his agreement upon certain payments being fully made to convey, constituted the vendee his agent for the erection of the building required by said contract. The sale of the material and furnishing of the labor were under a contract with the agent-of the owner whose authority was to make the improvement required. Kountze did ■not actually assist in making a contract for the purchase of the materia], and for securing performance of the necessary labor. He entered into such a contract as required another to do this, however, whereby that other was in fact his agent, either for the improvement- of -the property legitimately, or by -overreaching the material-man and laborer-through misleading ■ appearances. The law imputes the more honorable motive and holds the implied agency an honorable ope. Wherefore it results from the statute that the right to a mechanic’s lien arose as against the interest, not only of the vendor; but. of-the. vendeei as -well.:-By this it was not held that where the owner of the land sells it and simply takes back a mortgage for the purchase price without in any way becoming a party to a contract for the erection of improvements, that one who furnishes materials or labor upon a contract with the vendee alone can assert thereon a lien superior to that of the said mortgage duly recorded. Quite to the contrary it has been recently held by
Affirmed.