De Armond v. Carter

• Citation: 127 Ind.App. 34,134 N.E.2d 239
• Decision Date: 14 May 1956
• Docket Number: No. 18679,18679
• Parties: Grace B. DE ARMOND, William E. DeArmond, Appellants, v. Roosevelt CARTER, d/b/a Carter Electrical Service, Appellee.
• Court: Court of Appeals of Indiana

Page 239

134 N.E.2d 239

127 Ind.App. 34

Grace B. DE ARMOND, William E. DeArmond, Appellants, v. Roosevelt CARTER, d/b/a Carter Electrical Service, Appellee.

No. 18679.

Appellate Court of Indiana, In Banc.

May 14, 1956.

Lawrence Booram, Anderson, for appellants.

Bagot, Free & Shearer, Anderson, for appellee.

CRUMPACKER, Judge.

On June 21, 1954, the appellee Roosevelt Carter procured a judgment in the Madison Superior Court foreclosing a mechanic's lien he then held on certain real estate in the city of Anderson, Indiana, belonging to the appellants Grace B. DeArmond and William E. DeArmond as tenants by entireties.

The case was tried upon a complaint drawn on the theory that at the special instance and request of the appellants the appellee furnished the materials and labor necessary for the wiring for electricity of eight living apartments located on the second floor of a building belonging to appellants in said city of Anderson. That the reasonable value of the materials and labor so furnished is $1,665.73 to secure the payment of which he filed a mechanic's lien on said property in the manner provided by law. That the appellants refuse to pay their said debt to him although the same is past due and he therefore asks the foreclosure of said lien and all other just and proper relief. The court found for the appellee on this complaint and by its judgment fixed his lien at $1,332.58, foreclosed the same and provided for personal judgment over to cover any contingent deficiency. By this appeal the appellants challenge said decision as being: (1) Unsupported by sufficient evidence; (2) contrary to law; (3) excessive in amount; (4) erroneous in connection with the admission and exclusion of certain evidence; and (5) erroneously modified by nunc pro tunc order after term.

The first of these assigned errors requires an examination of the evidence most favorable to the decision. It may be summarized as follows: The appellee has been in the electrical contracting business in and about the city of Anderson, Indiana, since 1945. During the latter part of the month of April, 1953, he received a telephone call from the appellant William DeArmond asking the appellee to meet him at 926 Main Street in said city of Anderson for the purpose of discussing a job of electrical wiring he and his wife, owners of the building at that address, proposed doing on the second floor thereof. This floor is 100 feet long by 80 feet wide and has recently been cut up into eight living apartments each of which the appellants wanted wired for electricity. The appellee met the appellant William DeArmond as requested and, after an inspection of the premises, informed him that he could do a 'patchup' job for around $250 for materials and $250 for labor. There was some discussion as to what a 'patch-up' job would consist of and to whether it would meet the requirements of the city's building code but no agreement was reached as to the performance of the work. About a week later the appellee and William DeArmond again met and discussed the proposition of a complete new job of wiring for each apartment instead of the 'patch-up' one first considered. DeArmond said that if the appellee would give him a list of the materials he would need he thought he could buy them for less than wholesals from a supply house in Anderson that was going out of business. Such a list was prepared and after some further discussion about the hourly rate of pay for labor DeArmond left taking the list of needed materials with him. Subsequently a Mrs. Bloomfield, the appellants' tenant occupying the street floor of the building involved, telephoned the appellee and told him that the DeArmonds had purchased some materials for the job and suggested that he prepare a written proposition under the terms of which he would do the work. He thereupon prepared such a statement, signed the same and delivered it to Mrs. Bloomfield. This written proposition was not introduced in evidence, its absence is unexplained and there is no oral testimony as to its contents. The record is silent as to what became of it after it was delivered to Mrs. Bloomfield but it does appear that shortly thereafter she called the appellee and told him to go to work on the job. Before doing so however he went to the building and examined the materials the DeArmonds had purchased and found most of them unsuitable for the work. He so informed William DeArmond and was told to use what he could of said materials, buy the balance himself and get started on the work. He did so on May 5, 1953, and in completing the job he installed new wiring throughout the second floor of the appellants' building which consisted of a new wire from an outside pole to a nine meter panel inside the building and from said panel three to four independent circuits to each of the eight apartments and all conduits, switches, wires and baseboard outlets necessary to completely and efficiently wire all the rooms therein. The evidence shows in detail the material furnished and labor performed by the appellee which competent witnesses testified to be reasonably worth $1,665.73.

It is beyond contention that a mechanic's lien must arise out of contract, express or implied, with the owner or person whose interest in the real estate it is proposed to bind by the lien. Mann v. Schnarr, 1950, 228 Ind. 654, 95 N.E.2d 138. The evidence above summarized, which as we said at the outset is only that favorable to the decision, we believe to be sufficient to warrant the court in finding that the materials and labor for which the appellee sues were furnished by him at the special instance and request of the appellants. That there was no express agreement as to compensation and that no situation is disclosed whereby it can be inferred that the appellee furnished said labor and materials without expectation of being paid therefor. Under such circumstances the law implies a promise on the part of the appellants to make reasonable compensation for the labor and materials so furnished. Page, Law of Contracts, Vol. 1, § 1442; Louisville, N. A. & C. Ry. Co. v. Hubbard, 1888, 116 Ind. 193, 18 N.E. 611.

Secondly, the appellants assert that the decision of the court is contrary to law because the undisputed evidence compels the conclusion that the labor and materials for which the appellee sues were furnished by him under the terms of an express oral contract whereby he agreed to do said work and furnish said materials for a maximum compensation of not to exceed $500. That the court arbitrarily and without reason ignored and refused to consider such undisputed testimony as otherwise it could not have reached the decision in controversy. If an express oral contract of the tenor for which the appellants contend was made, the only evidence that the minds of the parties actually met on such an agreement is contained in the testimony of Thelma Bloomfield who testified that in April, 1953, she telephoned the appellee about rewiring the appellants' building and that in a day or two he came to see her in reference thereto. She explained to him that the building was to be rewired in such manner as to meet the requirements of the building code of the city of Anderson and he said he thought he could do it for about $300 but he wasn't sure and wanted a day or two to think it over. The next day he came into Mrs. Bloomfield's store and told her the job might run as high as $500. Mrs. Bloomfield relayed this information to the appellant Grace DeArmond by telephone. Mrs. DeArmond accepted the proposition and instructed the appellee, through Mrs. Bloomfield, to go ahead but to keep the cost below $500 if he could. Although the appellant William DeArmond testified that the appellee had agreed with him to do the job for not to exceed $400 he stated: 'May I explain the difference, it was that he later had conversations with Mrs. Bloomfield which I went along with. I realize that in that large job--and so I was willing to go ahead to $500.' From this evidence we think the court was justified in concluding that it is the alleged oral contract between the appellee and Grace DeArmond, made through Mrs. Bloomfield, upon which the appellants rely and that it is the circumstances and conversations constituting said contract that the appellants contend are undisputed and unimpeached and therefore compel the conclusion that appellee's right to recover is limited to $500.

In...