Sharon Town Co. v. Morris

39 Kan. 377 | Kan. | 1888

The opinion of the court was delivered by

Valentine, J.:

This was an action brought in the district •court of Barber county by M. T. & G. Morris, • as sub-contractors, against D. M. Fisher, as the contractor, the Sharon Town Company, as the owner, and Lee & Viele, as other subcontractors. The plaintiffs, M. T. & G. Morris, prayed in their petition for a personal judgment against Fisher for $395.69, and for the foreclosure of their mechanics’ lien. Lee .& Viele prayed in their answer and cross-petition for a personal judgment against Fisher for $240, and for the foreclosure of their mechanics’ lien. Other pleadings were filed in the case by the several parties. A trial was had before the court and a jury, and judgment was rendered in favor of ■the plaintiffs and of Lee & Viele, in accordance with the prayers of their respective pleadings; and the Sharon Town Company complains, and as plaintiff in error brings the case to this court for review, making M. T. & G. Morris and Lee & Viele defendants in error. The plaintiff in error, the ■Sharon Town Company, sets forth in its petition in error twenty-seven alleged errors; but these supposed errors may be considered in groups, and will be so considered, and not separately.

I. In an action for the foreclosure of a mechanics’ lien, all lien-holders and incumbrancers may be made parties, and all the issues in the case may generally be tried in one trial, and before one jury. (Mechanics’-Lien Law of 1871, §5; Comp. Laws of 1885, ch. 80, § 634.) Such has always been the practice in this state. There was no error in this case in trying all the issues at one and the same time, and before one and the same jury.

II. The mechanics’-lien statement of M. T. & G. Morris is signed by “M. T. & G. Morris,” and is sworn to by “G. Morris,” who states in his affidavit that he is a member of the firm of M. T. & G. Morris. This is certainly sufficient. (Deatherage v. Woods, 37 Kas. 60.)

III. The mechanics’- lien statement of Lee & Viele is signed by Thomas W. Lewis, who is stated to be the manager and the agent of Lee & Viele, and it is sworn to by the same Thomas W. Lewis who states in his affidavit that he is the manager of the firm of Lee & Viele at Medicine Lodge. This is also sufficient. (O’Keef v. Seip, 17 Kas. 141; Delahay v. Goldie, 17 id. 263.)

IV. That portion of the mechanics’- lien statement filed by Lee & Viele, which sets forth the amount claimed by them, and the items thereof, is as follows: “1885. October 22d. D. M. Fisher to Lee & Viele, Dr., To painting the Sharon Hotel, per contract of October 7, 1885, $240.” We think this statement is sufficient. Lee & Viele claim a lien for $240 for painting the Sharon Hotel, and this impliedly upon a contract in which it is stipulated that they were to have $240 for their work. From anything appearing in the case, the amount claimed is itemized as nearly as practicable.

V. It is claimed that the court below erred in the exclusion of evidence. Counsel for the Sharon Town Company asked one of their witnesses, William Garrison, a member of the-Sharon Town Company, the following question: “You may state in what amount, if any, the Sharoij Town Company was damaged by the failure bn the part of D. M. Fisher, the-original contractor, to complete the roof on said hotel according to contract ?” The question was objected to, and the court refused to permit it to be answered. There was no error in this. Damages cannot be proved by asking a witness how much a thing is or was damaged. (W. & W. Rld. Co. v. Kuhn, 38 Kas. 675.) Besides, it was not shown that Fisher had failed to complete any part of the hotel under his contract.

VI. Counsel for the Sharon Town Company also asked the-same witness the following question: “You may state the-amount you have paid out to the sub-contractors for labor and material furnished in and about the building of the said Globe Hotel, under your contract with the said D. M. Fisher.”' This question was also objected to, and the court refused to-permit the question to be answered. We cannot say that there-was any error in this. What other contractors there were, or-whether there were any or not, or whether there were any other lien-holders or not, is not shown, and no claim is made that, any considerable sum was paid to sub-contractors. Fisher was to have $3,500 for building the hotel, and the claims of the plaintiffs, M. T. & G. Morris, and the defendants, Lee &. Viele, in the aggregate, amount to only $635.69; hence it could make no possible difference under any interpretation of the law as to how much the Sharon Town Company paid to the sub-contractors, unless they paid more than the difference-between $3,500 and $635.69, to wit, $2,864.31. No claim is-made that they paid any such amount to the sub-contractors,, or to any persons; and no claim is made that the building cost to construct it more than the contract-price; and the contract-price is always considered as a fund from which the sub-contractors, (such as the plaintiffs and Lee & Niele were,) are entitled to receive their pay, provided, of course, that they properly file their mechanics’-lien statements. (Clough v. McDonald, 18 Kas. 114, 118.) No contractor or sub-contractor has any lien on this fund unless he properly files his mechanics’-lien statement.

Nil. It is further claimed by counsel for the Sharon Town Company, that the court below erred in giving and in refusing instructions to the jury. It is certainly not shown, however, that any material error was committed. The evidence introduced in the court below has not been brought to this court. Whether any of the instructions given were erroneous, or any of the instructions refused correct as abstract propositions of law, it is unnecessary to decide, for under the facts of the case as shown by the record brought to this court, no material or substantial error was committed in either giving or refusing instructions.

The judgment of the court below will be affirmed.

All the Justices concurring.