19 Ind. App. 91 | Ind. Ct. App. | 1898
— This was an action for the foreclosure of a mechanic’s lien brought by appellees against appellants. Bogers, who was made a party defendant to answer to his interest, filed a disclaimer. There was a trial by the court, a special finding of facts, and decree in favor of appellees. The action was brought under the provisions of the mechanic’s lien law oE 3883 (Acts 1883, p. 140), as amended by the act of 1889 (Acts 1889, p. 257), and by the act of 1891 (Acts 1891, p. 28, section 7255, Burns’ R. S. 1894). Appellees sought to recover for materials furnished both the contractor and subcontractor. Emma Trueblood and Annie Brady severally assign errors.
The special findings are, briefly, in substance, as follows: On the 4th day of October, 1894, defendant Annie Brady and her husband Jas. G. Brady, entered
During the construction of said house, said firm of
On the 21st of February, 1895, said Shellhouse & Company filed in the office of the recorder of Marion county, Indiana, a notice in writing of their intention to hold a mechanic’s lien on said premises and the dwelling house erected thereon for said materials so furnished and used as aforesaid by said Riffner and Mockford; that such notice was duly recorded in the proper record of said office; that during the times before mentioned, the firm of Shellhouse & Company was composed of said Conrad Shellhouse, Amanda May and Frank Rogers, but that after the filing of said notice of lien, and prior to the bringing of this suit, said defendant Rogers sold all his right, title and interest in and to the business and property of said firm, to the plaintiff Anthony F. Klineschmidt, since which time said Rogers has had no interest in the claims sued upon in this action, and said firm has been composed of the plaintiffs herein, who are owners of. the claims in suit. On November 15,1895, defendant Anna Brady, sbld and conveyed said real estate by deed of conveyance, in which her husband joined, to the defendant Emma Trueblood, and the said Emma Trueblood is still the owner thereof; that defendant Sylvester Trueblood,
The account being a chose in action was assignable in writing, or verbally. The assignee by delivery, of a chose in action may sue in his own name, making the assignor a party defendant. The assignment of the account carries with it the lien, which is a mere incident of the debt. Midland R. R. Co. v. Wilcox, 122 Ind. 84; Watson’s Ind. Statutory Liens, section 956; Sinton v. Steamboat R. R. Roberts, 46 Ind. 47 6; Boisot on Mechanics’ Liens, sections 9, 10, 11, 12. The question must be answered in the affirmative.
Second. “May a single notice of intention to hold a lien be made the basis of acquiring a lien for several different claims held by one assignee?” The complaint alleges but one notice of intention to hold a lien. Two bills of particulars are set out; exhibit A, materials sold to Riffner, and exhibit B, materials sold to Mockford. This question too must be answered in the affirmative under the decision in Smith v. Newbaur, 144 Ind. 95. The plaintiff in said cause sought to foreclose a lien for materials furnished to a contractor and subcontractor at different dates, but one notice of intention to hold a lien had been filed. Speaking for the court in said opinion, Howard, C. J., said: “Counsel next claim that the court erred in overruling appellant’s motion to strike out
“A like contention is made in discussing the motion for a new trial: The account filed by appellees, although for convenience and accuracy of reference filed in two bills of particulars, is in all essentials a single account of materials furnished for appellants’ dwelling; arid the notice of intention to hold a lien therefor being filed within sixty days from the furnishing of the last item, the lien relates back to and includes the whole account.” See also Boisot on Mechanics’ Liens, section 408.
Third. “To what title does a lien attach, that which exists at the time the goods were furnished, or that which may be subsequently acquired?” The lien would attach to whatever interest the party for whose use the goods were furnished had at the time of their delivery, or what title he might subsequently acquire. If one directed the construe
Fourth. “May the assignee of a lienor tack an expired claim to one of later date so as to defeat the statutory limitation as to the expired claim?” In the case at bar, sixty days had expired within which notice of intention to hold a lien should be given as to one of the bills. Notice of intention to hold a lien was filed within sixty days from the furnishing of a portion of the articles set out in the second bill. Under the contract between Mrs. Brady and Mr. Riff: ner, the latter was to furnish the materials and do the work required to complete the contract. Riffner could himself have purchased the materials, or have had it done by, his agent or subcontractor. It could make no difference to the owner, according to the reasoning in Smith v. Newbaur, supra, whether the materials were ordered by the contractor or by a subcontractor, and under the last named authority this question must be answered in the affirmative. We do not understand the opinion in Smith v. Newbaur, supra, to apply to the sale of materials to different contractors, under separate and distinct contracts.
Fifth. “Will the commingling of valid and invalid items in a material man’s claim defeat the right to a lien?” The court finds that a part of the items on appellees’ claim was not valid. It does not find that
Appellants also claim that the following- questions of practice are presented by the record: First. “If the assignment of a material man’s lien on a dwelling house is valid as made in parol, may it be proved to have been made in writing?” This question must be answered in the negative. The record, however, does not disclose that the assignment of the lien was in writing. The evidence is that the interest of Rogers, a member of the old firm, in the old claims and accounts, was sold to Klineschmidt, appellee. The new articles of copartnership entered into by Klineschmidt and the remaining members of the old firm, after Rogers sold his interest to Klineschmidt, simply recite that the said Klineschmidt succeeds by purchase and consent to the interest of Rogers. The articles are not signed by Rogers. Second. “Is it necessary that a material man’s complaint show that his goods were furnished for the particular building?” The complaint in this case does aver that the materials furnished were to be used in the construction of the building in question, and that they were used in the construction of the same. Third. “After the year in which an action can be brought has expired, may the complaint be amended so as to show that the materials were furnished and that they were furnished for a particular building?” The court may, in its discretion, permit the amendment of pleadings. The discretion in the case at bar was not abused. Fourth. “If such amendment be made, should the court allow the defendant time to prepare and file a special answer, the amendment being made after trial?” When an amendment is made after the issues are
It is true, as claimed by appellant, that the complaint avers that the materials were sold by appellees, and the notice of intention to hold the lien filed by them; that the facts further averred also show that appellee Klineschmidt was not at the date of the sale, or of the filing of said notice, a member of the firm of Shellhouse & Co. It must be conceded that these allegations are contradictory. The special findings, however, show the sale of the materials and the filing of the notice to have been done by the old firm, and the formation of the new firm after these acts. In Ogden v. Alexander, 140 N. Y. 356, 35 N. E. 638, it was held that a member of a firm who acquired the interest of his partners may have a lien for material and
Upon the facts found, and under the two decisions last named, which we approve, the proper judgment in the case at bar was rendered. We find no error for which the judgment should be reversed. Judgment affirmed.