White Lake Lumber Co. v. Stone

• Decision Date: 24 March 1886
• Citation: 27 N.W. 395,19 Neb. 402
• Parties: WHITE LAKE LUMBER COMPANY, APPELLANT, v. W. G. STONE, IMPLEADED, ETC., APPELLEE
• Court: Nebraska Supreme Court

27 N.W. 395

19 Neb. 402

WHITE LAKE LUMBER COMPANY, APPELLANT, v. W. G. STONE, IMPLEADED, ETC., APPELLEE

Supreme Court of Nebraska

March 24, 1886

APPEAL from the district court for Johnson county. Heard below before BROADY, J.

AFFIRMED.

S. P Davidson, for appellant, cited: Matthews v. Sowle, 12 Neb. 404. Stoll v. Sheldon, 13 Neb. 209. Graul v. Strutzel, 53 Iowa 712.

T Appelget & Son, for appellee, cited: Layet v. Gano, 17 Ohio 466. 1 Parsons Contracts, 42. Dinsmore & Co. v Stimbert, 12 Neb. 438.

OPINION

REESE, J.

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 to the lien of plaintiff. Janousky failed to answer, and default was entered against him. Defendant Stone answered and alleged therein that he had purchased the land upon which the building was constructed, after the construction thereof, but that before purchasing he applied to the agent of plaintiff in charge of its business, and who had sold the lumber to Janousky, for the purpose of ascertaining whether the said plaintiff had or claimed a mechanic's lien on the property, and that he was informed by the agent that plaintiff had no lien or claim upon the premises, nor any claim against Janousky which should become a lien thereon. That relying upon the representations, statements, and promises of such agent he purchased the property. The cause was tried to the court, who found in favor of plaintiff as against defendant Janousky, and rendered judgment for the amount claimed, but in favor of defendant Stone as to the lien, and refused to order the sale of the real estate. From the decree dismissing the action as against Stone plaintiff appeals.

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 the consideration would be a store in Crab Orchard, where the agent and defendant Stone resided, he could get the payment out of the store etc., and that relying on the statements and representations thus made, he made the trade. This testimony is in part corroborated by that of B. F. Stone, who testified that the agent informed him that if the trade went on he would get his pay out of the store. The agent, J. H. Hanna, testified on rebuttal that Stone came to the office of plaintiff about the time stated by him and enquired whether there were any claims on the Janousky place, and he informed him there were not, and that there were no liens on the property; but that he further said that if the trade was made Janousky would pay him out of the money received, and that if he did not do so a lien would be filed. ...