Chappell v. Smith

• Decision Date: 15 May 1894
• Docket Number: 5408
• Citation: 59 N.W. 110,40 Neb. 579
• Parties: JAMES CHAPPELL, APPELLEE, v. WILLIAM H. SMITH ET AL., APPELLEES, IMPLEADED WITH MICHIGAN SAVINGS & LOAN ASSOCIATION, APPELLANT
• Court: Nebraska Supreme Court

59 N.W. 110

40 Neb. 579

JAMES CHAPPELL, APPELLEE, v. WILLIAM H. SMITH ET AL., APPELLEES, IMPLEADED WITH MICHIGAN SAVINGS & LOAN ASSOCIATION, APPELLANT

No. 5408

Supreme Court of Nebraska

May 15, 1894

APPEAL from the district court of Sheridan county. Heard below before BARTOW, J.

REVERSED AND REMANDED.

Albert W. Crites, for appellant.

T. S Tripp, Thomas L. Redlon, R. M. Magee, D. B. Jenckes, W. H Fanning, and Spargur & Fisher, contra.

OPINION

RYAN, C.

On August 29, 1891, James Chappell, as plaintiff, filed his petition in the district court of Sheridan county, Nebraska wherein were made defendants William H. Smith, Fanny A. Smith, Excelsior Lumber Company, Michigan Savings & Loan Association, Charles W. Raymond, Tobias J. Thompson, John Reid, Lyon & Boyd, A. L. Pense, Frank A. Fafek, George W. Churchill, Charles S. Bates, Ira Longcor, Spargur & Fisher, John D. Zernetts & Co., and Robert McNair. In the petition it was alleged that William H. Smith was, at the various times to which reference was made in the petition, and at the date of its filing still continued to be, the owner of lot 29, block 7, in the village of Hay Springs, and that Fanny A. Smith had, at all times referred to in said petition, a dower interest in said lot, for the reason that said Fanny A. Smith was the wife of William H. Smith. The plaintiff, by his petition, sought to have a mechanic's lien declared, decreed, and enforced in his favor superior to the rights of all the defendants as to the lot above referred to, and several of the defendants, by way of cross-petition, sought like relief on claims of the same character as against the plaintiff and each co-defendant. By the default of Fannie A. Smith, Tobias J. Thompson, Charles W. Raymond, George W. Churchill, and John D. Zernetts & Co. there was ended the necessity of considering their rights or interests. By the decree the mechanics' liens were, so far as pertinent to our inquiry, declared of equal priority, each, however, being established as paramount to the rights of the Michigan Savings & Loan Association under its mortgage on said premises made by William H. Smith and his wife Fanny A. Smith. This mortgage bore date September 1, 1890, was acknowledged September 9, 1890, and was duly filed for record October 27, 1890. There was found due the Michigan Savings & Loan Association the sum of $ 604.50, with seven per centum per annum interest thereon from September 6, 1890. No one appeals from this finding, so that for the purposes of this case it may be assumed as correct. The savings and loan association, just mentioned, appealed from that part of the decree which subordinated the lien of the mortgage to each mechanic's lien established, and which adjudged that said association was liable for the amount of said established mechanics' liens. At the very threshold of our inquiries we observe that the money judgment against the Michigan Savings & Loan Association cannot be sustained, for there is no evidence whereby to substantiate the claim that this association was a party to the erection of a building on the premises described. It is true it agreed to loan money to Smith to be used for that purpose, but it in no sense was a promoter of his building scheme within the lines laid down in Bohn Mfg. Co. v. Kountze, 30 Neb. 719, 46 N.W. 1123; Millsap v. Ball, 30 Neb. 728, 46 N.W. 1125; Pickens v. Plattsmouth Investment Co., 37 Neb. 272, 55 N.W. 947; Holmes v. Hutchins, 38 Neb. 601, 57 N.W. 514, and Hoagland v. Lowe, 39 Neb. 397, 58 N.W. 197.

1. It was stipulated on the trial that on November 24, 1890, W. A. Chappell, as contractor of defendant Smith, filed the affidavit and account for a lien exhibited in the petition, upon which, at the time of the trial, there was due a balance of $ 765.38, and that said account and claim for a lien had been, by W. A. Chappell, assigned to plaintiff. The claim for a lien was in the form and filed as shown by the following excerpt from the brief submitted on plaintiff's behalf in this court:

"MECHANIC'S LIEN.

"Filed November 24, 1890, at 7 A. M.

"W. H. SMITH, Dr., To W. A. CHAPPELL.

To material furnished and labor performed, as per contract

hereto attached, marked 'A,' eleven hundred,

$ 1,100 00

To four days' work, at three dollars per day

12 00

To furnishing material and laying of 2,108 feet

of wall, at 18c. per cubic foot

$ 379 53

1890.

$ 1,491 53

By cash received

400 00

Balance due

$ 1,091 53

"Dated November 21, 1890. W. A. CHAPPELL."

"HAY SPRINGS, NEBRASKA, September 6, 1890.

"This contract, made and entered into on this day by and between William Chappell, party of the first part, and W. H. Smith, party of the second part, witnesseth: Party of the first part agrees to build the sides and east end of a building to be located on lot 29 of block 7, in Hay Springs, Nebraska; to place the walls in the ground two feet, and walls to be eighteen inches thick and twenty-six feet high from bottom of same, and the building to be twenty-five by sixty feet, and to furnish stone, mortar, and all material for same, and to do the said work all in good, substantial, and workmanlike manner; and also to plaster said building, the whole of the lower and upper stories of said building, with good three-coat hard finish work, furnishing all material for same, and to begin said work immediately and carry on the same as fast as possible without any unnecessary delay. W. H. Smith agrees to dig trench for said wall and pay said party of the first part as said work progresses, and on completion of said work, the sum of eleven hundred ($ 1,100) dollars. It is agreed further that at the two front corners of said building party of the first part is to lay such stone for same as party of the second part may furnish for same.

"Witness our hands this 6th day of September, 1890.

"W. A. CHAPPELL.

"R. M. MAGEE. W. H. SMITH.

"In addition to the above, parties hereto agree as follows, to-wit: That whatever is extra in amount of work and material on account of changes in plans, the said Wm. Chappell shall be paid eighteen cents per cubic foot, and agrees to take as part pay for said work one three-year-old bay colt horse, weight about 1,050 pounds, at $ 125.

"W. H. SMITH.

"W. A. CHAPPELL.

"STATE OF NEBRASKA, SHERIDAN COUNTY. SS.

"I, O. H. Bailey, do hereby certify the foregoing is a true and correct copy of the original contract entered into by and between W. A. Chappell and W. H. Smith.

"Witness my hand and seal this 22d day of November, 1890.

"[SEAL.]

O. H. BAILEY,

"Notary Public.

"THE STATE OF NEBRASKA, SHERIDAN COUNTY. SS.

"W. A. Chappell, being first duly sworn, on his oath says that the foregoing itemized account of the work, labor, skill, and materials furnished by this affiant for the said W. H. Smith under a written contract, a copy of which is hereto annexed, for the erection of a stone building on lot 29, in block 7, in the village of Hay Springs; and this affiant further says that he has, and hereby claims, a lien on the said premises for the full amount of said account, to-wit, the sum of $ 1,091.53, with interest thereon at the rate of seven per cent per annum from the 21st day of November, A. D. 1890; and further this affiant says not.

"W. A. CHAPPELL.

"Subscribed in my presence and sworn to before me, this 21st day of November, 1890.

"[SEAL.]

T. S. TRIPP,

"Notary Public.

Section 3, article 1, chapter 54, Compiled Statutes, requires...