Bennett v. Pearson

• Decision Date: 11 July 1966
• Docket Number: No. 2,No. 20392,20392,2
• Citation: 218 N.E.2d 168,139 Ind.App. 224
• Parties: Harold BENNETT and Francis Bennett, d/b/a Bennett Stone Co., Appellants, v. Edward PEARSON, d/b/a Pearson Building Supply, Billy H. Pruitt and Lena Pruitt, Appellees
• Court: Indiana Appellate Court

Page 168

218 N.E.2d 168

139 Ind.App. 224

Harold BENNETT and Francis Bennett, d/b/a Bennett Stone Co., Appellants, v. Edward PEARSON, d/b/a Pearson Building Supply, Billy H.

Pruitt and Lena Pruitt, Appellees.

No. 20392.

Appellate Court of Indiana, Division No. 2.

July 11, 1966.

[139 INDAPP 225]

Evens, Baker & Barnhart, Bloomington, for appellants.

No appearance for appellees.

SMITH, Chief Justice.

This case involves an appeal from a negative verdict rendered in an action brought by the plaintiff-appellants against the defendant-appellees to foreclose a mechanic's lien.

The relevant facts, as found in the record, are that the appellees Pruitt and appellee Pearson entered into an oral contract whereby Pearson agreed to veneer Pruitts' house with stone. On order of Pearson, appellants furnished the [139 INDAPP 226] stone to be used by Pearson in fulfilling his contract with the appellees Pruitt.

The appellants filed a lien on Pruitts' house in the amount of the purchase price of the stone which Pearson had agreed to pay. Prior to the filing of the line, the Pruitts paid Pearson the amount of the purchase price of the stone used in veneering Pruitts' house.

Appellants' complaint alleged in substance:

'1. That plaintiffs are partners engaged in the stone business under the name of Bennett Stone Company.

'2. That the defendants Billy H. Pruitt and Lean Pruitt, husband and wife, were on and prior to the 24th day of October, 1960 the owners of the following described real estate in Morgan County, Indiana, to-wit:

'A part of the North half of the Northeast quarter of Section 11, Township 13 North, Range 2 West, Described as follows, to-wit: Beginning at the Northeast corner of said tract: thence South 20.16 chains to the Southeast corner thereof; thence West 36.71 chains; thence North 20.16 chains to the North line of said tract; thence East 36.71 chains to the place of beginning, containing 74 acres, more or less. Also, Southwest quarter, Northeast quarter, Section 11, Township 13 North, Range 2 West, 40 acres;

and defendants are still the owners of said real estate.

'3. Plaintiffs further say that prior to said time the defendant Edward Pearson d/b/a Pearson Building Supply and Pearson Building Supply, Inc. entered into a contract by which said Edward Pearson d/b/a Pearson Building Supply and Pearson Building Supply, Inc. agreed to perform labor and procure stone and to veneer with stone the dwelling upon the above described real estate being erected by said Billy H. Pruitt and Lena Pruitt, husband and wife. The exact terms of said contract not being known to plaintiffs but known to defendants.

'4. Plaintiffs further say that the defendant Edward Pearson d/b/a Pearson Building Supply and Pearson Building Supply, Inc. did purchase stone from the plaintiffs to be used in the veneer of the dwelling on said real estate of the reasonable value of $665.59, an itemized statement of which is attached hereto, made a part hereof and marked [139 INDAPP 227] plaintiff's 'Exhibit A,' and said materials were used for and in the erection and construction of said dwelling.

'5. Plaintiffs further say that said defendant Edward Pearson d/b/a Pearson Building Supply and Pearson Building Supply, Inc. promised and agreed to pay plaintiffs said sum of $665.59.

'6. Plaintiffs further say that on the 24th day of October, 1960 and within sixty (60) days from the time of the furnishing of said materials plaintiffs filed in the Recorder's Office of the County of Morgan, State of Indiana, a notice in writing of their intention to hold a lien on the above described property therein specifically setting forth the amount claimed, to-wit: $665.59, together with the described real estate as heretofore set out, a copy of which said notice is filed herewith, made a part of this complaint and marked 'Exhibit B.'

'7. That said notice was on October 25, 1960 recorded in Miscellaneous Record 28 page 352 and said sum of $665.59 is now wholly unpaid.'

Trial was had without the intervention of a jury. The appellee-defendant Edward Pearson was called and defaulted. Thereupon the court entered a finding for the appellants and entered a judgment against appellee-defendant Pearson. Appellees Billy H. Pruitt and Lena Pruitt filed a 'motion for finding' which was sustained by the lower court.

Appellants maintain that the trial court erred in overruling their motion for a new trial and specifically erred in sustaining the appellees' 'motion for finding.'

There was conflicting evidence below concerning the delivery, acceptance and use of the stone; and appellants now urge that the trial court failed to resolve all conflicts in the evidence by considering only evidence favorable to the appellants.

The trial court is required to accept all facts which the evidence tends to prove and draw all reasonable inferences from this evidence. If there is a conflict in the evidence, then the court considers only such evidence as is favorable to the party against whom the motion is directed. Campbell v. Githens (1932), 94 Ind.App. 681, 182 N.E. 100, 101.

[139 INDAPP 228] It is our opinion that there was evidence from which the lower court could have at least inferred that appellee-Pearson ordered the stone, and that appellants delivered the stone to the site of its use at Pruitts' house.

It appears from an examination of the record that appellants did comply with the statutory requirements for filing and perfecting a...