80 Neb. 567 | Neb. | 1908
In 1903 M. F. Jones entered into a contract with J. A. Watson to erect for her a dwelling house on lot 8, in block 9, Capitol addition to the city of Lincoln. The plaintiff, the Searle & Chapin Lumber Company, is engaged in the retail lumber business, and furnished Watson the material used in the construction of the Jones dwelling. The last item charged in the account was on September 14, 1903, and consisted of 16 pieces of quarter-sawed oak flooring. The item preceding this last charged was made on September 2, 1903, and plaintiff’s claim for a lien was filed November 12 of that year. Suit was brought to foreclose the lien, and the defense made was that the claim for a lien had not been filed within 60 days from furnishing the last material. The defendants assert that the flooring-charged under date of September 14 was not delivered.
One D. E. Oreen was manager of the plaintiff’s yards at the city of Lincoln. He testified that 16 pieces of flooring were sent to the lot upon which the building was being erected, on September 14, 1903, on the order of Watson, the contractor. The driver was furnished with two tickets containing the items to be delivered. One of these he presented to the contractor or other person in charge of the work, who receipted the same, and the driver returned this receipted ticket to the office of the company, where the ticket was used in charging the material described therein to the party to whom delivery was made. O. I. Jones, husband of M. F. Jones, was present at the building when the driver arrived with the flooring.- He testified that he is the husband of M. F. Jones, the owner of the premises on which the house was built; that J. A. Watson was the contractor for the building of the house; that he was at the house at the time the lumber was sent out on the 14th; that no part of it was taken from the wagon; that he signed the receipt “exhibit 2”; that the driver came into the building with a ticket, while the wagon stood on the opposite side of the street; that some pieces of lumber were taken from the house and piled on the 'wagon, and the whole load was then returned to appellant’s yard; that the lumber sent out that day was rejected because it was not kiln-dried; that no flooring was used in the house that was not kiln-dried at the N street mill; that this lumber came from the yard, and was not kiln-dried, and Watson told the driver to take it back; that just previous to this he had a conversation 'with Watson in regard to using the kiln-dried lumber in the dining room, and the lumber on the wagon was not kiln-dried, and for that reason was sent back; that he knows positively of his own knowledge that none of the lumber sent out on the 14th was delivered at the house or on the premises, or even unloaded from the wagon. Jones further testifies that the driver left his team in the street, and
We recommend an affirmance of the judgment of the district court.
Affirmed;