40 Neb. 456 | Neb. | 1894
On the 25th day of May, 1889, Mrs. Samantha Keck was the owner of certain real estate in the city of Kearney, Nebraska, and upon said date she entered into a written contract with one Arthur Campbell. By the terms of this contract Campbell agreed to furnish all material and labor and erect for Mrs. Keck an annex to her hotel in said city. The hotel was to be completed by the 1st of October, 1889. As a consideration for the performance of his contract Campbell was to be paid $25,800. These payments were to be made in instalments on the first days of July, August, September, and October, each payment to be equal to eighty per cent of the value of the material and labor furnished the preceding month. The contract further provided : “It being understood that the final payment is to be made within twenty days after this contract is completely finished; provided, * * * that before each payment, if required, the contractor shall give the owner good and sufficient evidence that the premises are free from
This suit was brought by Henry Zarrs against the said Samantha Keck, Arthur Campbell, Spooner H. Howell, and Peterson & Ryan to have established, by decree of court, a lien which he claimed against the said hotel for labor and material furnished therefor under his contract with Campbell, and also to establish a lien against the property for some extras which he alleges he furnished for said hotel on an oral contract made with Mrs. Keck. During the progress of the trial, however, it was shown that this claim for extras had been settled and compromised before the bringing of this suit, and it will not be further noticed. Mrs. Keck and Mr. Campbell answered the petition of Zarrs. Peterson & Ryan filed an answer, in the nature of a cross-bill, claiming a balance due them of $760, for labor and material furnished in the erection of the hotel in pursuance of the contract with Zarrs, and prayed that the same might be declared a lien on the premises of Mrs. Keck. Howell filed an answer, in the nature of a cross-bill, claiming a balance due him of $391.94, for material furnished by him to Peterson & Ryan and used by them in the plastering of said building, and prayed that the same might be made a lien upon the premises of Mrs. Keck. Neither Campbell nor Mrs. Keck filed any answer whatever to the cross-petitions of Peterson & Ryan or Howell. The court below rendered a decree in favor of Howell, Peterson & Ryan, and Zarrs, and made the amounts found due those parties liens upon the premises of Mrs. Keck. From this decree Arthur Campbell and Mrs. Keck appeal.
1. We will first dispose of the appeal of Campbell. His objection to the decree is thus stated by his learned counsel in their brief: “We cannot escape the suspicion
2. We now proceed to the consideration of the objections urged by Mrs. Keck to the findings and decree. She objects to the decree and finding in favor of the appellee Howell on this ground : That since it appears from the record that the claim of Howell is for material furnished by him to a subcontractor of a subcontractor, therefore Howell is not entitled under the statutes of the state to a lien for the value of the materials so furnished. In Livesey v. Brown, 35 Neb., 111, it is said: “Under the me
3. Mrs. Keck alleges here certain objections to the finding and decree of the court in favor of Peterson & Ryan, the.substance of which is that the amounts allowed Peterson & Ryan by the court were erroneous under the evidence. As already stated, Mrs. Keck filed no answer to the cross-bill of Peterson & Ryan in the district court. As against her, then, the averments in this cross-petition were to be taken as true, as every material averment in a petition not denied by the answer for the purposes of the action will be taken as true. (Livesey v. Brown, supra.) Mrs. Keck therefore is in no position to assail the correctness of the court’s finding in favor of Peterson & Ryan.
4. Another contention of Mrs. Keck is that as Zarrs was surety on the indemnity bond of Campbell, therefore he, Zarrs, is estopped from maintaining this suit. It is said that Campbell himself could not file a lien against these .premises, and that therefore the surety on his indemnity bond cannot. This leads us to a construction of the contract between Campbell and Mrs. Keck. Is there any
5. Another objection urged by Mrs. Keck to the finding and decree in favor of Zarrs is that the court erred in not allowing her damages for the delay in completing her building. As already stated, this delay amounted to ninety-six days, and the contract provided that Campbell should forfeit for each day’s delay $20. Counsel for Mrs. Keek contend that since the evidence shows that Mrs. Keck had the building rented, to take effect from October 1, at the
Affirmed.