38 Ind. App. 95 | Ind. Ct. App. | 1906
The appellee sued tbe appellant to foreclose a material man’s lien on certain real estate. Tbe appellant’s demurrer to tbe complaint for want of sufficient facts was overruled. After averments showing tbe appellant’s ownership of tbe real estate described, in tbe county wherein tbe cause was commenced, it was alleged that tbe appellant, December 1, 1900, was erecting thereon a new hotel building, and on or about that date contracted with Charles H. Maloney and Edward Collins, partners doing business under tbe firm name of Maloney & Collins, to erect, construct and install a beating plant in and as a part of that building, and to do tbe plumbing, gasfitting, piping and draining in and as a part of tbe building, for which be agreed to pay said partners,$1,200, Maloney & Collins to furnish all necessary material therefor; that on or about December 22, 1900, Maloney & Collins and tbe appellee
The notice of lien was filed in the office of the county recorder March 2, 1901, for $486.23, which was the amount due the .appellee for the materials so furnished and used in the work done by the contractors for the appellant. It does not appear that the appellant at any time accepted the order above mentioned or agreed with any one to pay the appellee; and no evidence has been brought to our notice of any agreement for the release of the contractors because of the giving of this order for a sum less than the amount of the materials furnished. If it may properly be said that the material man would be precluded from suing for the foreclosure of the lien alone, without setting up, as the foundation of the action, the written contract between the owner and the principal contractor, in a case where, after the furnishing and use of the materials and before the filing of the notice of lien, that contract has been duly assigned to the material man, yet we do not regard the unaccepted order above mentioned as constituting an assignment of that contract.
Judgment affirmed.