Bohn Manuf'g Co. v. Kountze

• Decision Date: 11 November 1890
• Citation: 46 N.W. 1123,30 Neb. 719
• Parties: BOHN MANUF'G CO. ET AL. v. KOUNTZE ET AL.
• Court: Nebraska Supreme Court

30 Neb. 719

46 N.W. 1123

BOHN MANUF'G CO. ET AL.

v.KOUNTZE ET AL.

Supreme Court of Nebraska.

Nov. 11, 1890.

Syllabus by the Court.

In a contract for the sale of land, it was stipulated that the purchaser should erect a dwelling upon the premises within a stated time. The building was erected, but the labor performed and material furnished were not fully paid for. Held, in an action to foreclose the mechanic's lien, that the liens of the mechanic and material-man have priority over the lien of the vendor for unpaid purchase money.

Appeal from district court, Douglas county; DOANE, Judge.B. G. Burbank and A. C. Troup, for appellants.

Congdon, Clarkson & Hunt, for appellees.

NORVAL, J.

The Bohn Manufacturing Company brought suit in the district court of Douglas county to foreclose a mechanic's lien upon certain premises in the city of Omaha. Herman Kountze, the owner of the fee, Z. B. Berlin, the equitable owner in possession, under a contract of purchase with Kountze, and various mechanic lien holders were made defendants. Afterwards, Robert G. King was made a party defendant. On the 7th day of September, 1887, the defendant Herman Kountze, being the owner of lot 4, block 15, Kountze place, city of Omaha, contracted in writing to convey, by warranty deed, said lot to the defendant Z. B. Berlin, in case Berlin should perform his part of the contract. The contract price was $2,500, the purchaser paid $100 cash down, and agreed to pay $100 January 7, 1888; $50 September 7, 1888; and $50 on the 1st day of each month thereafter, until the whole sum was paid. All deferred pay ments were to bear 8 per cent. interest from date of sale. The contract contained, among others, this provision: “And it is hereby expressly understood and agreed, and is a part of the consideration for the sale of said lot to said Z. B. Berlin, that the said Z. B. Berlin agrees and binds himself, his heirs, executors, or assigns, to build, or cause to be built, on said lot a good, substantial, new dwelling-house costing not less than twenty-five hundred dollars, and, if more than one dwelling is erected on said lot, then each such dwelling shall cost not less than twenty-five hundred dollars, exclusive of all the other improvements that may be put on said lot, such house or houses to be built on good, substantial brick or stone foundations. The said dwelling shall be commenced within eight months from the date hereof, and be fully completed within twelve months from the date hereof, time being of the essence of this contract, and the improvements provided for being part of the consideration to be paid for said lot. Therefore, should said Z. B. Berlin for any reason fail or neglect to build such building as herein provided for, and within the time specified, then, at the option of said first party, and for the reason that said improvements have not been made as stipulated, this contract may be declared forfeited by said first party, with all the penalties herein provided for.” The contract also contained this stipulation: “And said party of the first part shall have the right, immediately upon the failure on the part of the second party to comply with the stipulations of the contract, or any part thereof, to enter upon the land aforesaid, and take immediate possession thereof, without process of law, together with the improvements and appurtenances thereunto belonging.” Upon the back of the contract was indorsed this memorandum, which was duly signed and witnessed: “It is hereby understood and agreed that, if so requested by the within-named Z. B. Berlin, the within-named H. Kountze shall advance to the within-named Z. B. Berlin any sum of money desired, not exceeding twenty-two hundred dollars, said money so advanced to be used in paying for workmanship and material for building the house within required to be built. Said money so to be advanced shall be placed in the First National Bank of Omaha, subject to check, at the date when said Kountze is notified that work will commence on said building. But nothing herein shall be construed to mean that any money shall be advanced, unless work is commenced on said building, within the time fixed by the within agreement for the commencement of work on said building. And the money so deposited shall be paid on checks of said Z. B. Berlin, accompanied by the estimates of the architect actually in charge of said building; and not to exceed 80% of the amount due for work done, and material actually furnished, shall be paid on any estimate, and the remaining 20% shall not be paid until the building is fully completed, and not then until ninety days have first elapsed, and proper proof is furnished that the building is clear of mechanic and other liens. All checks for the payment of money must bear the countersign of Herman Kountze before the same shall be paid by said bank, and duplicates of all contracts,...