Robinson v. Marney

5 Blackf. 329 | Ind. | 1840

Sullivan, J.

The appellees filed a bill in the Knox Circuit Court, to enforce a lien which they claimed for work and labour done, and materials found, in repairing a building in the borough of Vincennes.. The bill states-that Manley performed labour as a carpenter on said 'building, at the request of the owner, to the amount of 225 dollars and 33 cents; that Samuel Judah furnished materials of the value of 20 dollars and 19 cents; and Judah, Harper, Sf Co., materials worth 112 dollars and 28 cents. It appears that the carpenters’s work was completed about the first of May, 1837, that the materials furnished by Judah were sold between the 26th of August and 6th of NovejJiber, 1837, and those by Judah, Harper, fy Co., between the 16th of August and 1st of December, 1837. On the 19th of June, 1838, the complainants respectively filed, in the recorder’s office of Knox county, notice of their intention to hold a lien upon the property for the amount due them as above stated. The answers admit the carpenter’s work to have been performed as charged; they also admit the materials to have been furnished, but deny that the complainants, by whom they were furnished, gave notice of their intention to hold a lien upon the building, according to' the statute.

The cause was submitted to the Court on bill, answers, and exhibits; and decrees in favour of the complainants were entered according to the prayer of the bill.

Several points have been made by the appellants, but the only one to which we think it necessary to direct our attention, is the one insisted on by the defendants in their answers, that is, that notice of the complainants’ intention to enforce their lien was not filed in the recorder’s office within the time required by the statute. That was not done in the present case by two of the complaining parties. The statute requires that all persons, wishing to avail themselves of its provisions, “shall file in the recorder’s office of the. proper county, loithin sixty' days after the debt becomes due, notice of their intention to hold a lien upon the property for the amount due,” &c. The materials purchased from Judah were bought more than seven months, and those from Judah, Harper, Co., more than six months, before the notice was filed. The materials were not sold on a credit; — if they had been, the time given would have formed a part of the contract, and the debt would not have become due until the expiration of that time. But not being so sold, the price was due presently and might have been immediately enforced. Where, in a contract for the sale of goods, no time is given for payment, the law implies a contract to pay for them on delivery. The debt, then, having become due on the delivery of the materials, the notice should have been filed within sixty days from that time.

C. Fletcher and 0. Butler, for the appellants. S. Judah, for the appellees.

The notice filed by Marney was according to the provisions of the statute.

Per Curiam.

The decree in favour of Marney is affirmed with costs; and the decree in favour of the other complainants is reversed with costs. Cause remanded, &c.