Carson-Payson Co. v. Cleveland, C., C. & St. L. Ry. Co.
| Decision Date | 05 June 1914 |
| Docket Number | No. 8911.,8911. |
| Citation | 57 Ind.App. 357,105 N.E. 503 |
| Court | Indiana Appellate Court |
| Parties | CARSON-PAYSON CO. v. CLEVELAND, C., C. & ST. L. RY. CO. et al. |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; Chas. J. Orbison, Judge.
Action by the Carson-Payson Company against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.
Means & Buenting, of Indianapolis, for appellant. Russell Willson, Romney L. Willson, Elmer E. Stevenson, and Frank L. Littleton, all of Indianapolis, for appellees.
The pleadings forming the issues in this case are numerous and very voluminous. From these pleadings it appears that the appellees, Cleveland, etc., Ry. Co. and Chas. R. Myers, as trustee for such company, owned certain real estate described in the pleadings, and that in the year 1911 the railway company entered into a written agreement with the Warren Construction Company, by which the latter company agreed to construct on such real estate certain buildings of shops, roundhouses, and other buildings used together as one plant on said real estate. It further appears from the pleadings that the Warren Construction Company entered into a written contract with appellant Carson-Payson Company by the terms of which the latter company agreed to furnish all material and to do all the work for the complete construction of all the rough and finished plumbing and piping at the shops of such railway company at Beech Grove. The principal question to be determined in this case involves a construction of this latter contract.
Appellees contend that appellant, by the terms of this contract, waived the right given it by the statute to file or enforce a lien as subcontractor against the real estate on which such buildings were situated on account of any materials furnished or labor performed under such contract, while appellant contends that such contract, properly construed, does not constitute such a waiver. The question is raised in several ways. The court sustained a demurrer to the second paragraph of appellant's cross-complaint, by which it set up the contract and sought to enforce a mechanic's lien for a balance alleged to be due thereon, and also overruled a demurrer to an answer of appellees which set up the contract as a defense to the first paragraph of appellant's counterclaim, which sought to enforce a mechanic's lien for material furnished and work and labor performed on such buildings. Proper exceptions were saved, and both of these rulings are assigned as error. The same question is again presented by the assignment that the court erred in its second conclusion of law which is as follows:
“Said Carson-Payson Company waived its right to a mechanic's lien by the covenants in its written contract to keep the property free from liens for work or material furnished by it, and is therefore not entitled to a lien against any of said real estate described in its cross-complaint, and the notice of mechanic's lien filed by it is void.”
It is conceded by all parties to this appeal that the right given by statute to file or enforce a mechanic's lien may be waived by contract, and the authorities are not in conflict upon this question. Taylor v. Murphy, 148 Pa. 337, 23 Atl. 1134, 35 Am. St. Rep. 825;Miller v. Taggart, 36 Ind. App. 595, 76 N. E. 321, and cases there cited. In order to constitute a waiver of a lien given by statute the contract must contain an express covenant against liens, or the language of the contract must be such that a covenant against liens can be clearly implied therefrom. The language upon this subject should not be ambiguous or uncertain, but it should be so clear that a mechanic or materialman may understand it without consulting a lawyer as to its...
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... ... 632, 7 L. R. A. 711, 19 Am. St ... 691; Geo. B. Swift Co. v. Dolle (1906), 39 ... Ind.App. 653, 80 N.E. 678; Carson, etc., Co. v ... Cleveland, etc., R. Co. (1914), 57 Ind.App. 357, 105 ... N.E. 503. The cases which seem to be at variance to this and ... are so cited sometimes, [189 Ind ... ...
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