Barry v. Barry
| Decision Date | 07 February 1947 |
| Docket Number | 32111. |
| Citation | 26 N.W.2d 1,147 Neb. 1067 |
| Parties | BARRY et al. v. BARRY. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Where an allegation in the petition is admitted by the answer, the fact is established for the purpose of the case and the court cannot disregard it.
2. An admission in an answer does not extend beyond the intendment of the admission as clearly disclosed by its context.
3. To entitle one to a lien under the mechanic's lien law the labor must have been performed or the material furnished by virtue of a contract or agreement, express or implied with the owner of the real estate or his agent.
4. Neither a nonoccupying tenant nor his interest in jointly owned real estate may be charged for repairs or improvements on real estate in the absence of his consent, express or implied.
5. Where a part owner contracts for, or authorizes the making of, an improvement on the common property, his or her interest therein may be subjected to a lien for the entire cost thereof.
Boyle & Boyle, of Omaha, for appellant.
Charles S. Reed, of Omaha, for appellees.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ., and ANKENY, District Judge.
This is an action by Bernard D. Barry, Rita Barry, and Mary C. Barry plaintiffs and appellees, against Albert C. Barry, defendant and appellant, to foreclose a mechanic's lien. The district court on a trial of the case found that the plaintiffs had a valid lien for a part of the amount claimed and decreed foreclosure accordingly. A motion for new trial was filed by the defendant. This motion was overruled. From the decree and the order overruling the motion for a new trial the defendant has taken this appeal.
The petition on which the decree was based set forth that the defendant was at the time of the commencement of the action the owner of Lot 4, Block 9, Corrigan Place, an addition to the City of Omaha, Nebraska; that prior to January 3, 1945, defendant and Mary A. Barry, wife of defendant and mother of plaintiffs, owned the real estate in question as joint tenants with right of survivorship; that Mary A. Barry died January 3, 1945; that the plaintiffs at the order and account of Mary A. Barry furnished certain labor and materials for the improvement of the residence building on the premises; that the date of the first item was October 30, 1944, and the date of the last item was December 2, 1944; that an account as follows of the labor and materials was duly and regularly filed in the office of the Register of Deeds on March 2, 1945:
Nov. 27 44 Furnace $582.00
Oct. 30 44 Light fixtures 17.00
Oct. 30 44 Windows 60.00
Nov. 20 44 Hall painted 35.00
Nov. 6 44 Toilet fixtures 10.00
Nov. 24 44 Basement excavation 100.00
Nov. 22 44 Chimney repairs 27.00
Dec. 2 44 Bedroom painting 20.00
Nov. 24 44 Water Line 35.00
The prayer of the petition was for an accounting, for an adjudication that a lien existed in favor of plaintiffs, and for foreclosure of the lien.
To the petition the defendant filed an answer wherein he admitted the jurisdictional allegations of the petition. He further admitted his ownership of the real estate and that prior to the date of the death of Mary A. Barry he was a joint tenant with her with right of survivorship. He also admitted that between October 30, 1944, and December 2, 1944, the plaintiffs at the order and account of Mary A. Barry furnished certain labor and materials for the improvement of the residence building on the real estate in question. Further answering he denied generally all of the other allegations of the petition. Included in the answer was a general demurrer.
The asserted grounds for reversal are (1) that the court erred in overruling the demurrer, (2) that the court erred in overruling defendant's motion made at the conclusion of plaintiffs' case for a finding in favor of defendant and for a dismissal of the action, (3) that the court erred in overruling defendant's motion made at the conclusion of all of the evidence for a finding in favor of defendant and for a dismissal of the action, and (4) that the court erred in overruling defendant's motion for a new trial.
On the trial of the case the evidence disclosed that the defendant and Mary A. Barry were husband and wife and were the owners in joint tenancy of the real estate in question and that the plaintiffs were children of these parties. The defendant separated from his wife in 1939 and from that time until after the death of his wife did not occupy the property. The plaintiffs occupied the property with their mother except that for about 17 months Bernard was away in the military service. A furnace was put in the house at the cost of $582. Of the cost, Bernard Barry contributed $250, Mary C. Barry $150, and Rita Barry $182. Apparently the furnace was purchased from and installed by Olson Bros. The manner in which the transaction was handled is not made clear. The transaction appears to have been carried on in the name of Bernard Barry.
However that be, there is no evidence of any transaction between Mary A. Barry and Olson Bros. and no evidence of any agreement or understanding between Mary A. Barry on the one hand and the three plaintiffs on the other. Likewise there is no evidence of agreement or understanding with the defendant. There is not any evidence that he had any knowledge of the installation of the furnace until after it was installed. This lack of agreement, of understanding and knowledge, applied to each and every other item of the account.
In this state of the record the trial court decreed the existence of a mechanic's lien for $599 and allowed foreclosure for that amount. This appears to have been $582 for the cost of the furnace, $10 for the cost of the toilet fixtures, $2 for the cost of chimney blocks, and $5 for the cost of paint. This is not certain since the decree does not so state but by analysis of the record we have come to this conclusion. Also this analysis conforms to the statement of plaintiffs' brief. It appears from this that the trial court did not intend to and did not allow anything for the labor performed by Bernard Barry and limited the affirmative finding of the decree to the expenditures made by the plaintiffs.
Passing over the first assignment of error, did the evidence sustain the right to a mechanic's lien for the items allowed in the decree in favor of these plaintiffs against this real estate in the hands of this defendant after the death of Mary A. Barry, his cotenant? Could it even have been sustained for these items against it in the hands of Mary A. Barry?
The plaintiffs urge that this question may not be properly considered by this court on account of the admissions of the answer. They say that the answer admitting that these items were furnished at the order and account of Mary A. Barry bars a contention that there may be no lien therefor. They insist that the following rule is applicable: 'Where an allegation in the petition is admitted by the answer, the fact is established for the purpose of the case, and the court cannot disregard it.' Fidelity Finance Co. v. Westfall, 127 Neb. 56, 254 N.W. 710.
No fault may be found with this as a rule of law but we fail to see how it becomes applicable to the situation here. The answer does admit that certain labor and materials were furnished by plaintiffs for the account of Mary A. Barry but the admission is not couched in such terms as to amount to an admission that they were furnished in such manner as to entitle them to a mechanic's lien.
The question of whether or not plaintiffs were entitled to a lien in any event was properly raised in the second specification of the motion for a finding in favor of defendant and dismissal of the action made at the close of plaintiffs' evidence and preserved by a renewal of the motion at the close of all of the evidence.
Whether or not the trial court erred in refusing to decree a lien for the work performed by Bernard Barry is not before this court. The finding in this respect was adverse to plaintiffs and they did not cross-appeal. The fact is that we have here only that part of the decree which concerns the matter of material furnished by plaintiffs.
In ascertaining whether or not plaintiffs are entitled to a lien it becomes necessary to examine the appropriate statute and its history. The statute which contains the authority for the creation of mechanic's...
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