Bird v. Rector, Etc., of St. John's Episcopal Church of Elkhart

• Decision Date: 01 February 1900
• Citation: 154 Ind. 138,56 N.E. 129
• Parties: BIRD et al. v. RECTOR, ETC., OF ST. JOHN'S EPISCOPAL CHURCH OF ELKHART et al.
• Court: Indiana Supreme Court

154 Ind. 138

56 N.E. 129

BIRD et al.

v.RECTOR, ETC., OF ST. JOHN'S EPISCOPAL CHURCH OF ELKHART et al.

Supreme Court of Indiana.

Feb. 1, 1900.

Appeal from circuit court, Elkhart county; L. W. Vail, Special Judge.

Action to enforce a mechanic's lien by George M. Bird and others against the Rector, Wardens, and Vestrymen of St. John's Episcopal Church of Elkhart and others, claiming as subcontractors. From a judgment for defendants, and from an order denying a new trial, plaintiffs appeal. Reversed as to the church, and sustained as to the subcontractors.

Dodge & Browne, for appellants. Perry L. Turner, James S. Dodge, and Harman & Barney, for appellees.

DOWLING, J.

This was an action by appellants against the Rector, Wardens, and Vestrymen of St. John's Episcopal Church of Elkhart, Ind., by the name of St. John's Episcopal Church of Elkhart, Ind., upon a building contract, and to enforce a mechanic's lien. Divers subcontractors and material men who claimed liens were joined as defendants. The complaint was in a single paragraph. The principal defendant, St. John's Episcopal Church, filed an answer, in four paragraphs,-the first being a general denial; the second, a plea of payment; the third, a counterclaim for liquidated damages under the contract, for failure to complete the building within the time limited; and the fourth, a further counterclaim for special damages by reason of certain breaches of the contract by plaintiffs, other than by delay. Replies in denial to second, third, and fourth paragraphs. The remaining defendants separately filed answers in denial, and alleging payment. They also filed cross complaints setting up their several claims as subcontractors and material men, and demanding that the sums owing to them be first paid out of any moneys due to the principal contractors, and that their liens be enforced against the building and premises. Answer in denial. At the request of the parties, the court made a special finding of facts, with its conclusions of law thereon, to each of which conclusions appellants excepted. Motions for a new trial and for judgment on the special finding were made by appellants and overruled. Judgment that appellants take nothing by their suit; that the several subcontractors and material men recover from appellants the amounts of their respective claims, with their attorney's fees; and that their liens be enforcedagainst the church property. It was further adjudged that the defendants the Rector, Wardens, and Vestrymen of St. John's Episcopal Church, etc., recover from the appellants $1,972.32, subject to credits for any amount which the plaintiffs might pay thereafter to the said subcontractors and material men on account of their judgments. Error is assigned upon the several conclusions of law, and upon the refusal of the court to grant a new trial.

Appellees make the point that the evidence is not properly in the record. This objection rests upon the form of the certificate of the trial judge to the general bill of exceptions, and, in our opinion, the objection must prevail. The certificate is in these words: “And now, on this 24th day of February, 1898, the said plaintiff presents his bill of exceptions, containing all of the evidence offered, introduced, and given in said cause, to the point where the defendant rested its main case, and all objections and exceptions reserved during the trial of said cause, to the point where the defendant rested its main case. Said bill of exceptions contains all of the evidence in said cause, to the point where the defendant rested his main case. And now, on this 24th day of February, 1898, the Honorable Lew Vail, the special judge who tried said cause, in vacation signs and seals said bill of exceptions,” etc. The certificate was signed by the special judge. It does not appear from this certificate or elsewhere that the evidence set out in the bill of exceptions was all the evidence given in the cause. On the contrary, the unavoidable inference from the language of the certificate is that there was other evidence which is not included in the bill. There were several defendants, and it is impossible to determine just what is meant by the certificate. Other evidence may have been introduced by the plaintiffs below and by other defendants after the defendant the church corporation had rested its “main case,” whatever that may be, which fully sustained all the findings of fact. We are therefore constrained to hold that the evidence is not in the record, and consequently that no question dependent upon it is before us. Harris v. Railway Co. (Ind. Sup.) 55 N. E. 222. This ruling takes out of the record all of the supposed errors except such as are assigned upon the conclusions of law.

The special finding is, in substance, as follows: The Rector, Wardens, and Vestrymen of St. John's Episcopal Church of Elkhart, Ind., as a corporation, were on June 4, 1895, the owners of the premises described in the complaint. On said day a contract in writing, as alleged in the complaint, was entered into between the plaintiffs and the defendants the Rector, Wardens, Vestrymen, etc., whereby the plaintiffs were to furnish all the materials and labor, and were to erect, on the premises described, a church edifice, for which the church corporation was to pay the plaintiffs $13,850. The plaintiffs proceeded with the said work, and completed the same agreeably to the contract, except as otherwise set forth in the special finding. After the contract had been entered into, by the mutual agreement of the parties, and for the accommodation of the plaintiffs, the church corporation accepted a bid from the Lansing Lumber Company to furnish certain lumber and materials for said church edifice, and promised to pay for the same; such payment to be entered as a credit on the contract price for said church building. The cost of the material and work so received from said company was $1,881.18, and said amount is a proper credit on said contract price. After having furnished a part of the lumber and mill work mentioned in their bid, the lumber company became insolvent, and were unable to furnish the residue, and by such failure the plaintiffs were greatly damaged. The plaintiffs procured the residue of the mill work from another firm, and paid for the same $909.42; but said purchase and outlay were included in their contract, and were a part of the materials the plaintiffs were bound to furnish. Another small bill for lumber purchased by plaintiffs was also included in their said contract. Sundry items charged for by plaintiffs as extra work were just claims, because not embraced in the contract. Certain unimportant deviations from the contract plans and specifications were made by plaintiffs, but the same were known to, and not objected to by, the church corporation, and said corporation sustained no damage thereby. The facing stone above the basement, for which $800 was charged by plaintiffs as for extra work, was not extra, but was within the contract. The tower of the church edifice settled, causing the stone steps built into it to crack, but the plaintiffs were not responsible for such settling. The mortar used in the construction of the building was not such as the contract called for, and the church corporation was damaged thereby $100. By the defective pointing of the walls, the defendant church was damaged $150. By various other defects in the work, the church corporation was damaged to the further amount of $172. All of said sums should be allowed as credits upon, or as deductions from, the contract price of said church edifice. The payments made to and on account of the plaintiffs by the said Rector, Wardens, and Vestrymen amounted to $10,489.77. The plaintiffs refused to construct the reredos named in the contract, and by the agreement of the parties the Rector, Wardens, etc., procured the same to be constructed by other persons at an expense of $295, which is to be deducted from the contract price. By the terms of the contract, the church edifice was to be completed by plaintiffs by March 1, 1896, but the time was extended by the architect until April 5, 1896. The plaintiffs were delayed in their work one month by the failure of the Lansing Lumber Company, and by an accident to Laurer & Weiss, subcontractors. The plaintiffs claimed that their work under their contract was completed by June 5, 1896; but the officers of the church denied this, and on June 12, 1896, made complaint in writing to the plaintiffs of sundry defects and omissions in said work. The possession of said church building was in fact in the defendant church corporation from June 5, 1896, and was held by plaintiffs at their request. Afterwards the plaintiffs endeavored to correct and make good said defects and omissions, but did not fully do so, to the damage of the church corporation as afterwards in said finding stated. On June 24, 1896, the officers of the church notified plaintiffs, in writing, that they had failed to complete the church according to their contract; that said church corporation elected, under the contract, to complete the same itself; and that the officers demanded the keys of the building. The building was delivered by the plaintiffs to the officers of the church, in pursuance of this notice, July 3, 1896, when the Rector, Wardens, etc., undertook to finish the work themselves. No final certificate was ever issued by the supervising architect stating that the work, under the contract, was finished by plaintiffs. Said work was not in fact completed by plaintiffs. Plaintiffs are entitled, upon a quantum meruit, to a certificate from the architect showing that there is due them, subject to certain additions and deductions, the sum of $3,182.45. Within 60 days after the completion of their work, the plaintiffs filed in the office of the recorder of Elkhart county notice of their intention to hold a lien on said church building and premises as...