39 Neb. 285 | Neb. | 1894
John A. Wakefield brought suit in the district court of Douglas county to foreclose a lien against lots one and two in block six, Denise’s addition to the city of Omaha, for material which he alleges he furnished to construct some dwelling houses on said lots. William Latey and William Y. Benson were made defendants, as it is alleged the material was furnished to them, they owning the lots at the time, and W. B. Millard was made defendant, as he owned the lots when this suit was brought. The district court by its decree gave Wakefield a lien on the lots, and Millard brings the ease here on appeal.
Counsel for appellant, for a reversal of this decree, make the following points:
“ State op Nebraska, \ Douglas County. /' ’
“John A. Wakefield, being first duly sworn, on his oath says that the foregoing itemized account of materials is a true and correct account of materials furnished by this affiant for the said-under a verbal contract for said materials for the erection of the houses upon said land as dwellings on the following described lots, piece, or parcel of land, viz.: Lots one and two, block six, Denise’s addition to the city of Omaha; and this affiant further says that he has, and hereby claims, a lien on said premises for the full amount of his said account, to-wit, the sum of $1,922.93, together with interest thereon at the rate of ten per cent per annum from the 17th day of September, A. D. 1887. And further affiant says not.
“John A. Wakefield.”
It will be observed that the lien claimant in this affidavit does not state the name of the person with whom he contracted to furnish the material mentioned in the account, nor does he state the name of the real estate owner; and it is tor these reasons that counsel claim the affidavit is insufficient. The “account of items,” to which this affidavit is attached, is headed: “Omaha, Nebraska, January 20, D88. John A. Wakefield, wholesale and retail lumber and building materials. Sold to Latey & Benson. Ten per cent interest charged after maturity.” Then follows the dates and items and price of the material. Then the following: “Omaha, Nebraska, January 20, 1888. William Latey et al., Latey & Benson, Esq., To John A. Wakefield, Dr. To merchandise for three houses, bills sold August 17, 1887, as per itemized bill attached.”
The “account of items”.and affidavit attached to the same should be both looked to and read as one instrument, and when this is done, it appears that in pursuance of a
Section 3, chapter 54, Compiled Statutes, 1893, provides: “Any person entitled to a lien under this chapter shall make an account in writing * * * of the material furnished, * * * and after making oath thereto, shall,” etc. But this section does not require, the lien claimant to state in such oath all the facts he would be required to plead in a suit to foreclose his alleged lien. The object, however, in requiring a lien claimant to file in the office of the register of deeds “an account of the items” of material for which he claims a lien against real estate, is to apprise persons dealing with it of the claims against the same; and this statute is complied with if it appear or is fairly inferable from the “account of items” and oath or affidavit thereto, when read together, that the claimant has brought himself within the provisions of the statute. Whether a verified “account of items” filed shows on its face sufficient facts to entitle it to be asserted of record as a lien against the owners of real estate, and a suit in equity to foreclose the lien claimed to be based thereon, is a juris
2. The verified “account of items” was filed against. Latey & Benson, and the evidence shows that the real estate, at the time they purchased the material ánd made the improvements, stood of record in the name of William Latey and William Y. Benson, individuals composing the copartnership of Laley & Benson. Appellant’s counsel insist that this state of facts made the firm of Latey & Benson subcontractors, and they have no lien because they did not make and file in the office of the register of deeds a sworn statement of the amount due them from their principals within sixty days, etc. The answer to this is that the evidence shows that the real estate was, at the time Latey & Benson made the contract with Wakefield for the material, and during the erection of the improvements for which the material was purchased, the property of the copartnership of Latey & Benson.
3. The verified “account of items” was filed January 20, 1888, and the last item claimed by Wakefield to have been furnished Latey & Benson under the contract is dated September 27, 1887. This item is made úp of eight doors and 250 feet of “4370 lumber” (moulding). Counsel insist somewhat vehemently that there is in the record no competent evidence showing that the material called for by this item of September 22, 1887, was furnished by Wake-field to Latey & Benson under the contract in this case, and
4. Latey & Benson erected on the two lots three houses, designated in the evidence as Nos. 25, 26, and 27. These houses were all built at the same time. The material for all was furnished by Wakefield under one contract made with Latey & Benson. The houses were to be alike, and the material for each was to be the same. No separate account of the material furnished by Wakefield under his contract for their erection was kept, and such extra material as was used in the finishing of all three was furnished by Wakefield and charged to the account of Latey & Benson under their
5. It appears from the evidence that Latey & Benson, on November 3, 1887, paid Wakefield $2,000, which sum Wakefield gave Latey & Benson credit for on an old account they owed him. Appellant insists that this $2,000 was money he paid to Latey & Benson as purchase price for the real estate in controversy here, and that Wakefield should be compelled to credit his claim here against Latey & Benson with that sum. We cannot say the trial court was wrong in refusing to do this. The evidence shows that at the time Wakefield received the $2,000 from Latey & Benson, they owed him large sums on old accounts and they gave him no directions and made no requests as to the account on which it should be applied. “Money paid by a debtor, without direction as to its application, may be applied by the creditor as he pleases.” When appellant purchased these lots from Latey & Benson, the lien in suit was of record; and if he chose to pay over the purchase price and assume the risks of defeating the lien, he has no one to blame but himself and certainly *is in no position to ask a court of equity to compel another to bear a loss he might have avoided by the exercise of a little foresight and business sagacity.
The decree appealed from is correct and in all things
Affirmed.