Caulfield v. Polk
| Decision Date | 21 April 1897 |
| Docket Number | 2,109 |
| Parties | CAULFIELD v. POLK |
| Court | Indiana Appellate Court |
From the Marion Superior Court.
Affirmed.
C. C Binkley, and Carter & Brown, for appellant.
Herod & Herod, for appellee.
ROBINSON J. COMSTOCK, C. J., took no part in this decision.
This was a proceeding by appellant to foreclose a mechanic's lien. Upon a special finding of the facts, the court stated its conclusions of law in appellee's favor. The court's conclusions of law upon the facts found, and overruling the motion for a new trial are the errors assigned.
The facts found are, substantially, that, on the 24th day of June, 1893, the appellee entered into a contract with the Eagle Machine Works, a corporation, by which the machine works agreed to sell and furnish to the appellee an engine and boiler for appellee's canning factory, located on certain real estate in Greenwood, in Johnson county, Indiana; the engine and steam boiler to be delivered on board the cars at Indianapolis, and billed to appellee at Greenwood, appellee to pay the freight. Afterwards the appellant, a manufacturer of steam boilers at Richmond, Indiana, agreed to, and did, furnish to the Eagle Machine Works a steam boiler for the purpose of being used by it in fulfilling the contract with appellee. Pursuant to instructions of the machine works, the appellant, on the 19th day of July, 1893, shipped the boiler from Richmond, Indiana, to the machine works at Indianapolis, at which place it was received by, and the freight paid by the machine works. After adding a door to the boiler, the Eagle Machine Works, on the 22d day of July, 1893, shipped the boiler from Indianapolis to the appellee at Greenwood, by whom it was received a day or two after, and prior to the 1st day of August, 1893, was placed by the appellee in his factory at Greenwood. The engine was furnished appellee by the machine works prior to the 22d day of July, 1893, and was placed in the factory by appellee, having been set in brick and mortar and made a permanent addition to appellee's factory and the real estate on which the same was located. Appellee paid the freight on the boiler from Indianapolis to Greenwood. On the 4th day of August, 1893, appellant filed, and caused to be recorded in the recorder's office of Johnson county, a notice of his intention to hold a mechanic's lien on the real estate on which appellee's factory containing the boiler was located. On the 6th day of August, 1893, appellant gave appellee written notice of the filing of the notice of lien, which was received by appellee on the following day. Appellant has never been paid for the boiler. On the 27th day of July, 1893, appellee settled with the Eagle Machine Works for the engine and boiler by executing his note at ninety days, negotiable and payable in a bank in this State. On the 28th day of July, 1893, this note was transferred by the Eagle Machine Works to one Charles Latham as collateral on a large indebtedness owing by the machine works to him, Latham, at the time surrendering a like sum of the proceeds of other collaterals theretofore held by him against such indebtedness. Appellee paid the note to Latham at its maturity. On the 31st day of July, 1893, the machine works failed and was placed in the hands of a receiver, which receivership was still pending when this cause was tried. After the payment of appellee's note, Latham had collected from such collaterals a sum sufficient to discharge his debt and had paid to the receiver $ 500.00 in cash, and that there was still uncollected collaterals of the face value of about $ 400.00. The Eagle Machine Works did not manufacture boilers, but furnished to mills and factories engines and boilers, using the engines of its own make, but purchasing boilers from other parties. For more than a year prior to the 22d day of July, 1893, the machine works had been purchasing its boilers of the appellant, and it was the custom to settle on the 10th day of the month for all boilers purchased during the preceding month, either by cash or note not exceeding ninety days. In June, 1893, and prior to the 20th day of the month, the machine works had failed to meet its paper maturing during that month, and was asking appellant to renew its notes. On the 22d day of June, 1893, appellant informed the machine works that he could not sell it further goods unless he knew to whom the goods were to be furnished by the machine works, and unless he could have some security for payment of the same. On the last named date the machine works informed appellant that it was about to close a contract with appellee for machinery and that in the contract was estimated one of appellant's boilers. Upon this information appellant stated to the machine works that he would look up appellee's commercial standing, which he afterwards did, and found the same satisfactory. Since June 26, 1893, the machine works ordered but two boilers from appellant, one of which was never shipped and the other was shipped to Indianapolis in the same car with the boiler for appellee's factory. On all sales of boilers made by appellant to the machine works prior to the 22d day of June, 1893, appellant had taken no mechanic's lien. After the 22d day of June, 1893, and prior to the time the machine works was placed in the hands of a receiver, appellant sold to it only two boilers, the one for appellee's factory and the other shipped by appellant in the same car, and for each of these appellant had taken a mechanic's lien, and each was taken and claimed within ten days after the appointment of the receiver.
Upon the facts found, the court stated as a conclusion of law that the appellant is not entitled to a mechanic's lien. Appellant's counsel contend that the court erred in its conclusion of law, and have directed their arguments to this point only.
Section 7255, Burns' R. S. 1894, provides: "That contractors, sub-contractors, mechanics, journeymen, laborers, and all persons performing labor or furnishing material or machinery for erecting, altering, repairing or removing any house, mill, manufactory or other building, bridge, reservoir, system of water-works, or other structure, may have a lien separately or jointly upon the house, mill, manufactory or other building, bridge, reservoir, system of water-works, or other structure which they may have erected, altered, repaired or removed, or for which they may have furnished material or machinery of any description and on the interests of the owner of the lot or land on which it stands, or with which it is connected, to the extent of the value of any labor done, or material or machinery furnished, or both."
Appellant complied with the requirements of the statute as to giving notice, and the only question to be determined is whether the statute gives him a lien upon appellee's property for the value of the boiler.
The statute, in so far as it gives a right to a lien for machinery for the construction, repair or alteration of a mill or factory, has remained practically unchanged since the act of 1853, although the manner of acquiring the lien has been changed frequently. Section 5293, et seq, R. S. 1881; section 7255, Burns' R. S. 1894 (E. S. 1688).
The lien of a mechanic or materialman is not a common law right but is a privilege conferred by statute. It does not create any additional right to the debt, but is an additional remedy for the collection of the debt. The remedy is cumulative, and may or may not be employed in connection with the ordinary action for the collection of the...
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