Clark v. Huey

• Decision Date: 03 April 1895
• Docket Number: 951
• Citation: 40 N.E. 152,12 Ind.App. 224
• Parties: CLARK ET AL. v. HUEY ET AL
• Court: Indiana Appellate Court

40 N.E. 152

12 Ind.App. 224

CLARK ET AL. v. HUEY ET AL

No. 951

Court of Appeals of Indiana

April 3, 1895

From the Marion Superior Court.

Judgment reversed at costs of appellees with instruction to grant a new trial.

I. P and P. Gray, for appellants.

J. T Lecklider, for appellees.

DAVIS J. REINHARD, J.

OPINION

DAVIS, J.

This action was instituted in the court below for the foreclosure of a mechanic's and materialman's lien. There was a trial by the court, and a special finding of facts and conclusions of law, upon which, over appellants' exceptions, a decree was rendered for the enforcement of the lien and sale of property to satisfy the same. On appeal to the general term, the judgment and decree of the special term were affirmed.

The only assignment of errors in this court is the ruling of the court in general term affirming the judgment of the special term.

Separate assignments of errors by each appellant were made in the superior court as follows:

1. That the complaint does not state facts sufficient to constitute a cause of action.

2. That the court, at special term, erred in overruling the motion for a new trial.

3. That the court, at special term, erred in overruling the motion in arrest of judgment.

4. That the court, at special term, erred in its conclusions of law upon the facts found.

The first and third assignments of error may be considered together. The only argument made in support of the insufficiency of the complaint is that the latter "proceeds upon the theory that the materials mentioned in the bill of particulars were furnished to William Bartenick, a contractor, for Charles L. Clark, while the copy of the notice filed shows that the notice was directed to Clark and wife, for materials furnished to them at their request." We do not think there is a material variance between the contents of the copy filed as an exhibit and the averments of the complaint, respecting the person or persons to whom the materials were furnished. If the materials were furnished to the contractor for Clark and wife, to be used in the building, and were so used, all of which is averred in the complaint, a notice directed to Clark and wife, in which it is stated that the materials were furnished to them at their instance and request, in the improvement or construction of the house, will be sufficient to secure the lien. The mere wording of the notice is of little importance. Its chief office is to apprise the owner and others interested that the furnisher of the materials claims to have a lien on the property. There is no such repugnancy here between the complaint and the exhibit as will render the former bad on motion in arrest, or on an assignment of errors that the complaint does not contain facts sufficient to constitute a cause of action.

In support of the second specification of the errors assigned in the superior court, appellants' counsel contend that the trial judge, in his ruling, committed an error in allowing the appellees to amend their complaint during the progress of the trial. When the appellees offered in evidence their original notice of intention to hold a lien, objection was made to the introduction of the same, upon the ground that it was not the same notice as that described in the complaint, and differed materially from the copy filed as an exhibit. Thereupon, the court permitted the appellees to amend the copy of notice filed so as to conform to the original notice offered in evidence. The amendment consisted in striking out of the copy of the notice filed with the complaint, after the words, "your special instance and request," the following, "and at the special instance and request of William Bartenick, your contractor."

The notice, introduced in evidence, was directed to the appellants and informed them that the appellees intended to hold a lien on the property, described, for work and labor done, and materials furnished them, at their special instance and request. The exhibit filed was an exact copy of this notice, except that it contained the additional and superfluous statement stricken out. The amendment in no wise changed the material averments of the complaint, nor the theory upon which it proceeded. Moreover, if the amendment was so material as to necessitate the procurement of additional evidence on the part of appellants, or to require further time for any reason, they should have moved for a postponement of the trial. They have not shown in what respect they were injured by the amendment.

Some complaint is also made of the ruling of the trial court in excluding testimony to the effect that, before the filing of the notice of intention to hold a lien by the appellees, the appellants had fully paid Bartenick, the contractor, for all the materials, including those in suit. In this there was no error. Colter v. Frese, 45 Ind. 96; Merritt v. Pearson, 58 Ind. 385; City of Crawfordsville v. Johnson, 51 Ind. 397.

This brings us to the only remaining specification of error, being the one which calls in question the correctness of the conclusions of law upon the special findings. It is the contention of appellants' counsel that the special findings show that the materials were furnished, not to the appellants, at their special instance and request, nor upon the credit of the property, but to the contractor, and to him alone, and upon the strength of his individual credit. It is insisted that the attempt to charge the appellants' property with a lien is an afterthought upon the part of the appellees, arising when they made the discovery that the contractor was insolvent, and had departed from the State. The substance of the material portion of the facts found bearing upon the question under immediate consideration is that the appellant Charles L. Clark, the owner of the property sought to be charged, employed Bartenick, the contractor, to alter and improve for him a frame dwelling house situated upon the real estate described in the complaint, the contractor agreeing, on his part, to furnish all the materials, and do all the work, for a certain stipulated price, to be paid as the work progressed; that the materials in controversy were furnished by the appellees at the request and upon the order and credit of said Bartenick to be used in said dwelling house, and that they were so used.

It is further found that the said Bartenick was a carpenter and builder and was at the time he was engaged in altering said dwelling house of appellant engaged in erecting six other different buildings for other and different parties under contract with the said other parties to erect said buildings and furnish all the materials therefor, and at the time of making the contract with appellant the said Bartenick was indebted to appellees on a general running account for lumber and materials sold by appellees in the sum of several hundred dollars; that during the progress of the work upon the house of appellant and during the time the appellees were furnishing the materials in the complaint mentioned, they were furnishing other materials for the said other and different buildings so being erected by said Bartenick; that all of said materials were charged to said Bartenick in said general account kept by appellee against said Bartenick; that said general account amounted to $ 1,686.87, of which Bartenick paid in installments $ 1,450, and that after the completion of said work for appellant said Bartenick became and was in failing circumstances pecuniarily and left the State, and that afterwards appellees filed a notice of their intention to hold a mechanic's lien on the property of said appellant for the entire balance of said general account against said Bartenick, to wit, $ 236.87.

As we have before stated, the entire account against Bartenick, including the lumber and material furnished for and used in the several buildings, referred to in the finding, amounted to $ 1,686.87. The entire balance due appellees thereon, after deducting payments made by Bartenick, was $ 236.80. No attempt was made by appellees to acquire a lien on the property of any of the other parties, but notice was filed by them, as above stated, of their intention to hold a lien for the entire balance on appellant's property. The court found that the materials furnished by appellees and used in appellant's house amounted to $ 93 in the aggregate and that appellees were entitled to a lien for the entire amount; that the first materials furnished to Bartenick by appellees for use in appellant's house, amounting to $ 40.46, were delivered on the 30th of April, 1891, and that after that date the materials sold to Bartenick for the different buildings amounted to $ 367.63; that the payments on said general account, including said items, from January 30 to July 15, 1891, amounted to $ 1,450, all except $ 575 of which was paid after April 30. In view of the fact that the entire amount of material used in appellant's house was only $ 93, all of which was furnished on and after April 30, and that the balance due on said general account after the last payment thereon in July 15 was only $ 236.80, and that $ 367.63 of said account was for material sold Bartenick after April 30, we fail to find anything in the record explaining why a part, at least, of the account for material used in appellant's house was not paid. In other words, the theory is not shown on which the court found that appellant should pay appellees for the full amount of the material used in his house, notwithstanding payments on said general account in excess in the aggregate of the entire account after the sale of at least a part of the material used in his house.

In this case the payments were made on a general running account. The payments are not shown...