Beeson v. Overpeck

• Citation: 44 N.E.2d 195,112 Ind.App. 195
• Decision Date: 20 October 1942
• Docket Number: 16984.
• Parties: BEESON v. OVERPECK et al.
• Court: Court of Appeals of Indiana

44 N.E.2d 195

112 Ind.App. 195

BEESON v. OVERPECK et al.

No. 16984.

Appellate Court of Indiana, in Banc.

October 20, 1942

Foley & Foley, of Crawfordsville, for appellant.

W J. Sprow and Arthur McGaughey, both of Crawfordsville, for appellees.

BLESSING Judge.

Appellant Carroll O. Beeson, a duly licensed architect, instituted a suit in the Montgomery Circuit Court to foreclose a mechanic's lien for labor, services, materials, and supplies furnished by him in preparing plans and specifications, and supervising the remodeling of a Y. M. C A. building into an apartment hotel.

To appellant's complaint, appellees filed their joint separate and several demurrer, which demurrer was sustained by the trial court. To this ruling, the appellant excepted and refused to plead further in the cause, and judgment was rendered in favor of the appellees. In this appeal the appellant challenges the ruling of the trial court in sustaining appellees' demurrer, which was on the grounds of insufficiency of the facts to constitute a cause of action.

Appellant alleges in his complaint that he was employed in September 1940, by appellees Earl Overpeck and Richard Smith to prepare plans and specifications for, and to supervise the remodeling of, the afore-mentioned Y. M. C. A. building, for which services he was to receive as payment six per cent of the total cost of the remodeling of said building. The complaint further alleges the following facts: Appellant prepared all the necessary plans and specifications and properly supervised the work until the same was completed, but received only $600 in payment for his services. Appellees have refused to furnish said appellant with a statement of the amount expended by them, but appellant believed the amount expended to be approximately $45,000. In order to compromise and settle appellant's claim for additional payment, the appellees offered, and appellant agreed to accept, the additional sum of $1,100, which was to be paid upon the completion of a mortgage loan by the R. F. C. Mortgage Company, a corporation. To protect and secure the payment of the said eleven hundred dollars, appellant filed notice of his intention to hold a lien, which notice was recorded. Appellant then alleges that he is entitled to have his lien foreclosed because appellees secured the mortgage loan from the R. F. C. Mortgage Company, a corporation, but refused to pay to said appellant the sum of eleven hundred dollars.

The memorandum filed with the demurrer to the complaint is as follows:

"Memorandum of Insufficient Facts

"Said complaint is filed for the sole and only purpose of foreclosing a mechanics lien against the property of said defendants, and the plaintiff being an architect, and it being shown that he was so employed, to prepare plans and specifications for the building in question and that his contract of employment provided that he was to receive as pay a per cent of cost of work done in making repairs as to building, and that no separate contract was made for his work in preparing plans and specifications and for superintending the work in question, and he not being a laborer, contractor, mechanic, material man, subcontractor or builder, he is not entitled to have and hold a mechanics lien on the building in question or to foreclose a lien thereon."

The only question to be determined in this cause is whether an architect is entitled to a mechanic's lien for his services in the preparation of plans and specifications, and for his services in supervising the construction or repair of a building. This precise question has not been adjudicated by the courts of last resort in this state.

Section 43-701, Burns' 1933, Sec. 10505, Baldwin's Ind. Statute 1934, provides for a lien for contractors, subcontractors, mechanics, journeymen, laborers and all persons performing labor in the construction or alteration of any building.

Appellees contend that appellant did not come within the provisions of the statute because he is not a "laborer."

In support of this contention appellees direct our attention to the case of Indianapolis, etc., Traction Co. v Brennan, 1910, 174 Ind. 1, 87 N.E. 215, 90 N.E. 65, 68, 91 N.E. 503, 30 L.R.A.,N.S., 85, in which the court defines the meaning of the word ...