Barnett v. Stevens

• Decision Date: 17 April 1896
• Docket Number: 1,896
• Citation: 43 N.E. 661,16 Ind.App. 420
• Parties: BARNETT v. STEVENS ET AL
• Court: Indiana Appellate Court

43 N.E. 661

16 Ind.App. 420

BARNETT v. STEVENS ET AL

No. 1,896

Court of Appeals of Indiana

April 17, 1896

Rehearing denied December 3, 1896, Reported at: 16 Ind.App 420 at 439.

From the Carroll Circuit Court.

Reversed.

Pollard & Pollard and M. Winfield, for appellant.

De Witt C. Justice and John H. Gould, for appellees.

DAVIS J. Ross, J., absent.

OPINION

DAVIS, J.

The court below made a special finding of facts and conclusions of law thereon. Appellant excepted to each and every conclusion of law. Appellant also moved for judgment in his favor upon the special finding, which was overruled, and he excepted. Appellees' motion for judgment on special finding was sustained and appellant excepted. These rulings of the court below are assigned as error. The special finding of facts and conclusions of law thereon are as follows:

"First--On the 14th day of May, 1890, the defendant, Atwater C. Barnett, was the owner, in fee simple, of lot number 47, in the original plat of the town, now city of Logansport, Cass county, State of Indiana, on which was situated a brick hotel. That on said 4th day of May, 1890, the plaintiffs, under the firm name and style of Stevens & Bedwards, and the defendant, Atwater C. Barnett, entered into a contract in writing for the furnishing of material and the performing of labor in repair upon said hotel by the said plaintiffs, to-wit:

"'LOGANSPORT, IND., May 4, 1890.

MR. A. C. BARNETT, CITY:

We propose to furnish and put in place four Victoria closets, seats and tanks, nickle-plated flushing and supply pipes; one three-stall urinal, stationary, marble, nickle-plated trimmings; change the old wash basins; put in place of compression cocks, nip low down cocks; connect all to sewer in basement; cocks, fillings and ventilation pipes all in first-class manner, for the sum of $ 589.00, $ 289.00 to be paid when the job is completed; $ 100.00 in 30 days; $ 100.00 in 60 days; $ 100.00 in 90 days from time job is completed.

STEVENS & BEDWARDS.

A. C. BARNETT.

"'In consideration that the closets and urinals are to be put in down stairs, where the present soil pipe connections are already in, and we agree to add two closets to this contract, and in the named price.

STEVENS & BEDWARDS.'

"Said work and fixtures were intended by said Barnett to take the place of other urinals and closets then in said hotel, at a place then pointed out by said Barnett, and upon special designs and patterns named by said Barnett, to which plaintiffs assented. After the making of said contract the plaintiffs took the measurements in the hotel and drew the plan on paper for the proposed work, and gave the order to the planing mill for the doors and partitions, and ordered the urinals, and the marble to be cut, and the shapes required, and made the brass castings and other parts to the design and contract, and on the 20th day of June the plaintiffs had finished up, in their shops at Logansport, all of said material with the fittings and connections, and ready to be set up in the said Barnett Hotel, as provided in the contract, and the work and labor, and the value of the materials which had been used in the fashioning and building said job were, at the time, of the value of $ 435.00. Said material, as framed and fashioned for the Barnett Hotel, was not adapted to any other building in the city of Logansport, and could not be used in that city without considerable change and loss of value, and it was unmarketable. That on the 20th day of June, 1890, the plaintiffs had not done any work upon the hotel on lot No. 47, except the taking of the measurements aforesaid, nor had they delivered any of the material upon the grounds, but still had the same in their possession in their shops at Logansport, ready, formed and prepared for placing in position in said hotel.

"Second--That on the 20th day of June, 1890, the defendant, Atwater C. Barnett, having sold his said real estate, notified the plaintiffs in person that he had sold said hotel, and countermanded the order heretofore given on said 4th day of May, for said material and work, and gave the said plaintiffs notice that he did not wish them to carry out said contract, and refused to allow them to put into said hotel said urinals, closets and other work, and forbade plaintiffs to carry out said contract and complete said work; and there after, on the same day, plaintiffs tendered said Barnett said urinals, closets and other work, and offered to set them up and complete them in said hotel in accordance with said contract, but Barnett refused to accept said offer, or to allow said work to be done, and requested plaintiffs to see the persons to whom he had sold said hotel about the same.

"Third--That on the 19th day of June, 1890, said Atwater C. Barnett sold his hotel to one Emily A. Clark, and executed to said Emily A. Clark a deed for said property and put the said Emily A. Clark and her husband, Len. J. Clark, in the possession of said property on the 20th day of June, 1890, and said Barnett at once left the State of Indiana, and for some time thereafter resided in the city of Chicago, in the state of Illinois. That on the day before said hotel property was sold by Barnett to Clarks, Barnett notified plaintiffs that he was about to sell, and if he should sell he would not want the improvements ordered.

"Fourth--That on the 20th day of June, 1890, the day after the sale found in item No. 3, and on the day that said Clarks took possession of said hotel, the plaintiffs filed in the recorder's office of Cass county, Indiana, a notice of their intention to hold a lien upon said property for material furnished and work done under said contract of May 4th, 1890, which was recorded in the recorder's office of Cass county, Indiana, in Miscellaneous Record 6, page 69, at 3 o'clock p. m. of said June 20, 1890, a copy of said notice in the words and figures, to-wit:

"'To Atwater C. Barnett and All Others Whom it May Concern: You are hereby notified that we intend to and do hold a lien upon the following described real estate to-wit: Lot No. 47 in the original plat of the town, now City, of Logansport, in Cass county, in the State of Indiana, and on the hotel building thereon situate, known as the Barnett Hotel, for the sum of $ 589.00 for labor performed and goods and materials furnished for repairing and altering said Barnett Hotel building on said real estate, and renovating the plumbing service of said building; said goods and materials consist of urinals, water closets, and plumbing prepared on special order, and in place, specially made and furnished for said hotel building, within 60 days last past before this notice, June 20, 1890.

A. W. STEVENS,

WILLIAM BEDWARDS.

"'Received for record at 3 o'clock, p. m., June 20, 1890, and recorded in Miscellaneous Record 6, page 69.

HENRY HUBLER, Recorder Cass County.'

"Four and one-half--That on the 16th day of June, 1890, defendant Barnett notified plaintiffs in writing that he was negotiating for the sale of his hotel property, and if the sale was consummated he would not want the improvements provided for in their said contract.

"Fifth--I find that on the 20th day of June, and on the 16th day of June, 1890, the plaintiffs had ordered material for the work to be done under said contract, and had said material on hand in their shop in the city of Logansport, Cass county Indiana, which was the place of business of the said Stevens & Bedwards, and that they had performed all of the work upon said material in adjusting it for use in said building as provided in said contract of May 4, 1890, excepting the putting in place in said building, but the plaintiffs still had, on the 20th day of June, 1890, possession of said material in their shop at Logansport, and none of it had been delivered to the defendant, Barnett, on lot 47, nor had there been any work done on the hotel in the performance of said contract, except measurements of the place where said urinals and closets were to be placed.

"Sixth--I further find that the closets and tanks ordered by the plaintiffs to fill the contract of May 4, were such water closets and tanks as could have been used elsewhere than in the hotel upon lot 47, of the defendant, Barnett, only by expensive changes and work, they having been manufactured especially for said hotel; and the urinals could have been adjusted so as to be used in other places than in said hotel, only by expensive changes and work, they having been manufactured especially for use in said hotel at the places provided in said contract, and pointed out by said Barnett.

"Seventh--I further find that the said Emily A. Clark and her husband Len. J. Clark, under said conveyance, remained in the possession of said hotel during the months of July and August, 1890, and from and after June 20, 1890. That on the 29th day of July, 1890, the plaintiffs, under the firm name of Stevens & Bedwards, entered into a written contract with said Emily A. Clark and Len. J. Clark, for the performance of the same labor and the furnishing of the same material on and for the hotel situated on said lot 47, which written contract is in the words and figures following, to-wit: 'This contract and agreement made and entered into this 29th day of July, 1890, by and between Stevens & Bedwards party of the first part, and Emily A. Clark and Len. J. Clark, parties of the second part, witnesseth: That said Stevens & Bedwards for and in consideration of the sum of five hundred and fifty-five dollars ($ 555.00), to be paid by the said party of the second part, as hereinafter stipulated, agree to furnish the materials and make and construct the following work and repairs in and to the Barnett Hotel building, situated upon lot number...