Burlingim v. Warner
| Decision Date | 20 February 1894 |
| Docket Number | 5245 |
| Parties | WALTON E. BURLINGIM, APPELLANT, v. CHARLES E. WARNER ET AL., IMPLEADED WITH NORMAN A. KUHN ET AL., APPELLEES, AND BRENNAN & BAGLEY ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Douglas county. Heard below before WAKELEY, J.
AFFIRMED.
Winfield S. Strawn and Charles H. Breck, for appellants.
Isaac E. Congdon and George F. Gilmore, contra.
Walter E. Burlingim began this suit to foreclose a mechanic's lien upon certain lots in the city of Omaha. Charles E Warner, Egbert E. French, Norman A. Kuhn, the Central Loan & Trust Company, and a number of other parties were made defendants. The defendants not named claim mechanics' liens upon the property.
The plaintiff in his petition alleged a contract between the defendants Goddard and Seivert and the defendant Warner to erect for Warner two brick dwellings upon the lots in controversy, and the purchase by Goddard and Seivert from the plaintiff of materials which were delivered and used for the purpose of erecting such buildings; that Warner was then the owner of the property "by some contract of purchase from Norman A. Kuhn, in whom was the fee title," and that under said contract Warner had entered into possession of the premises; that under the contract Warner was required to erect the buildings upon the lots; that plaintiff furnished the material and filed a claim of lien as required by law that while the contract for the erection of the buildings and purchase of the lots was made with Warner, yet Warner was insolvent and was acting in the whole matter for the defendant French; that Kuhn took from French and Warner a bond conditioned to relieve such realty from mechanics' liens, and to secure the erection of such buildings clear and free of such liens. The petition further avers that the defendant the Central Loan & Trust Company had two certain mortgages from Warner and wife upon said lots in the sum of $ 7,500, duly recorded, but that no part of the sum secured by said mortgages had ever been paid, but the whole was yet in the hands of the trust company, which company the plaintiff avers has always been ready to pay over the same upon the execution and delivery by Kuhn of a deed to Warner, but that Kuhn refuses unlawfully to deliver such deed. The prayer is for the establishment of the mechanic's lien prior to any claims of Kuhn, Warner, and French; that Kuhn be decreed to deliver a deed to the property, and that the trust company be required to bring the proceeds of the loan into court, and out of that the plaintiff's lien paid, and in any event the property be sold to satisfy the same. There were other prayers incident to the above which need not be specifically stated.
Some of the defendants claiming liens filed cross-petitions in substance similar to the original petition. Other defendants filed cross-petitions alleging, in terms, that Warner acted in the premises as agent for Kuhn. Still others averred ownership generally in Warner without averring any facts which could possibly charge any interest which Kuhn might have with their liens. These differences in the pleadings become unimportant in the view we take of the case.
Warner, by his answer, denied everything except his contract with Goddard and Seivert, and that he was in possession of the property under a contract of purchase from Kuhn.
Kuhn, by answer, averred that he agreed with Warner upon the terms of a sale, and that the proposed contract was put in writing; that the purchase price of the property was to be $ 5,000, $ 1,200 of which was to be paid in cash, but that the contract was never executed; that Warner never paid any of the purchase price; that Kuhn never gave Warner the right to enter into possession, never authorized the construction of improvements upon the property, and expressly told plaintiff while he was delivering material that Warner had no right or interest in the premises.
To this answer the plaintiff replied, denying each material affirmative allegation, and averring that when plaintiff found the title to be in Kuhn he applied to Kuhn and was by Kuhn informed that the premises had been sold to Warner and that French was taken as surety on the contract for the sale of the land and building of the houses, and that Kuhn would consider the sale by Burlingim a good sale, and that thereupon the plaintiff delivered the material; that Kuhn was present at the buildings, gave instructions in regard to the contract, and assumed a superintendency thereof.
The Central Loan & Trust Company answered that it had two mortgages "on file" upon the property and that no part of the sum described by said mortgages had been paid, but denied that it had ever been ready to pay over the same, and averred that it was one of the express conditions of the contract of loan that no money was to be paid until Warner had acquired title in fee-simple to the premises, and had fully constructed the buildings; that Warner had not finished the buildings and had not acquired title to the premises, and that the trust company had declared its agreement at an end and entered of record releases of the mortgages.
The different pleadings, based upon the original petition and the cross-petitions, are numerous and voluminous, but their nature is fairly summarized by saying that they resulted in forming issues upon all the claims substantially similar to those above stated.
A trial was had and a decree rendered finding that neither the plaintiff nor any defendant had any claim or lien upon the interest of Kuhn; that the different mechanic's lien claimants had liens in amounts specified upon such interest as Warner might have in the premises; that Kuhn did not enter into any contract by virtue of which Warner was under obligation to or had a right to erect any building upon the premises, but that the verbal negotiations for such contract were never completed by the performance of the conditions precedent upon which Kuhn was to enter into such contract, and that no written contract had ever been executed. The court declined to adjudicate the question of Warner's equitable rights.
The plaintiff and the defendants claiming mechanics' liens appeal from the decree, claiming that the evidence brings the case within the rule stated in Bohn Mfg. Co. v. Kountze, 30 Neb. 719, 46 N.W. 1123.
On behalf of the appellants the argument is based chiefly upon the state of affairs which the testimony on their behalf tended to establish, and it is urged that the testimony on behalf of Kuhn should not prevail against the contradicting evidence. It is said that upon appeal the case should be tried de novo, and that the findings of the trial court are a nullity in an equity case brought here upon appeal. It would seem that this question is so well settled that it should not be again raised. In cases tried to the court without a jury the finding on questions of fact is entitled to the same weight and the same presumptions of correctness as would be accredited to the verdict of a jury. (Cheney v. Eberhardt, 8 Neb. 423, 1 N.W. 197; Hartley v. Dorr, 15 Neb. 451, 19 N.W. 632; McLaughlin v. Sandusky, 17 Neb. 110, 22 N.W. 241; Roggencamp v. Seeley, 19 Neb. 170, 26 N.W. 625; Cass County Bank v. Morrison, 17 Neb. 341, 22 N.W 782; Bond v. Dolby, 17 Neb. 491, 23 N.W. 351.) A large number of cases might be cited. In this respect the rule is the same upon appeal as in proceedings in error. (Newman v. Mueller, 16 Neb. 523, 20...
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