19 Neb. 402 | Neb. | 1886
This is an action to foreclose a mechanic’s lien for lumber, etc., furnished for the construction of a dwelling-house on the land of defendant Janousky. The petition of plaintiff contains the usual averments in actions of the kind, with the additional allegation that defendant Stone claims some title to the property, but which 'is junior and inferior
It appears from the record that the whole account against Janousky amounted to $310.80. Of this $160.80 had been paid, leaving a balance of $150.00 unpaid. The last item of the account was furnished November 26th, 1883. The purchase was made by Stone on the 9th day of January, 1884. The affidavit and account were filed in the office of the county clerk on the 23d of February following. Upon the trial defendant Stone testified very positively that a day or two before making the purchase, and pending the negotiations, he called upon the agent of the plaintiff at its usual place of business and enquired particularly if there were to be any claims against the land, and if Janousky owed anything for lumber, etc., and that he was informed by the agent that he had a note for the balance due but that if Stone could make the trade to do so and he would not be molested; that no lien would be claimed or asserted in case the trade was made. That as a part at least of
It is insisted that the finding of the trial court is not supported by sufficient evidence, and that for that reason the decree should be reversed. Upon this feature of the case we have only to say that, in -accordance with the settled rule of law in this state when the testimony is conflicting, the verdict or finding in the trial court will be Sustained unless clearly wrong. We not only find sufficient evidence in this record to sustain the finding, but are of the opinion that it is supported by the preponderance of the testimony. The finding will, therefore, not be molested on that ground.
Plaintiff sought to show by the testimony of the witness Hanna, its agent, and by that of its vice-president, that Hanna had no authority to waive the taking of liens in any other method except upon payment of the lien itself. This was objected to, and upon plaintiff’s counsel stating in an-swerto an enquiry of thejudgethathedidnot propose orex-pect to prove that either Janousky or Stone had any knowledge of such fact, the objection was sustained. This, is assigned as error. In this we see no error. As to the legal
It'would be unreasonable to say that it was his special duty to secure a ■ lien in this particular case, or to file and secure liens in all cases. The matter was and must have been left to his discretion and judgment. Now, assuming the finding of the court to be correct, that by his conduct and representations the agent' induced Stone to make the purchase, relying upon the statement and promise that no lien existed and’none would be claimed, this being within his apparent authority, no good reason can be found why Stone should not be protected from a lien filed a month and a half after his purchase. If, therefore, Hanna was apparently the general agent of plaintiff for the transaction of its business at Crab Orchard, entrusted with the control of its business, it is very clear that he had authority to depend upon the integrity and ability of Janousky to pay the debt in question without seeking the advantage of a mechanic’s lien, and his promise to do so would bind his principal.
It is not deemed necessary to discuss the question presented involving the statute of frauds. At the time the promise wás made there .was no mechanic’s lien to be surrendered or canceled; no estate to convey; no instru
The ruling of the district court being in our opinion correct, the same is affirmed.
Judgment affirmed .