169 N.W. 512 | S.D. | 1918
Lead Opinion
Defendant A. had', with his wife and family, occupied, under a contract of purchase, a small frame dwelling upon one platted lot in the city of Sioux Falls since October, 1915, when in May, 1916, and from that date until July, 1916, plaintiff furnished material for, and which went into, a new
The trial court found:
“That at the time the defendant Allmendinger purchased said material from plaintiff, he stated and represented to the plaintiff and defendants that he would .use the material so purchased to construct a house on said lots for sale, and that he would sell the same and pay for the materials; that 'he was contracting the construction of houses anid that he would sell and dispose of this •house as soon as completed1; that plaintiff believed the defendant Allmendinger intended to use said material for the construction of a house for sale, and delivered the material for that purpose only; that the defendant Allmendinger did not construct said house for
The judgment and order appealed from are reversed.
Concurrence Opinion
(concurring specially). I agree with my Colleague that the evidence was insufficient to sustain a finding that the wife of A. should he estopped from claiming the homestead night in the lot and the old building. I do, however, believe that the evidence was sufficient to estop both A. and his wife from asserting a homestead interest in the new building. I therefore think the decree of the trial court should have adjudged the sale of the new dwelling and its removal from the premises >in accordance with the provisions of section 15, c. 263, Laws 1913. Jones on Liens (3d Ed.) § 1373; Rockel, Mech. Liens, § 138; Pinkerton v. Le Beau, 3 S. D. 440, 54 N. W. 97; Lamb Lbr. Co. v. Roberts, 23 S. D. 191, 121 N. W. 93; Estabrook v. Riley, 81 Iowa, 479, 46 N. W. 1072, 10 L. R. A. 33; Mahon v. Surerus, 9 N. D. 57, 81 N. W. 64; Gull River Lbr. Co. v. Briggs, 9 N. D. 485;, 84 N. W. 349; note, 62 L. R. A. 369; note, 10 L. R. A. 33; note, 2 Ann. Cas. 689.
I dissent from the portion of the opinion which asserts that plaintiff knowingly filed an untrue account as a basis for his lien.