Cleveland, C., C. & St. L. Ry. Co. v. Shea

• Decision Date: 03 June 1910
• Docket Number: No. 21,595.,21,595.
• Citation: 91 N.E. 1081,174 Ind. 303
• Court: Indiana Supreme Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. SHEA.

174 Ind. 303

91 N.E. 1081

CLEVELAND, C., C. & ST. L. RY. CO.

v.SHEA.

No. 21,595.

Supreme Court of Indiana.

June 3, 1910.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action by Michael J. Shea against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, with instructions.

See, also, 90 N. E. 339.

Frank L. Littleton and John J. Kelly, for appellant. Henry Warrum, for appellee.

MONKS, C. J.

Transferred from the Appellate Court under section 1399, Burns' Ann. St. 1908. Appellee brought this action on an alleged written contract of appellant to pay an account held by appellee against a contractingcompany engaged in constructing a roadway and tracks for appellant. A trial of said cause resulted in a finding, and, over a motion for a new trial, a judgment in favor of appellee.

Each paragraph of the complaint is challenged in this court for the first time on the ground that it does not state facts sufficient to constitute a cause of action. It is also assigned as error that the court erred in overruling appellant's motion for a new trial. It is alleged in the first paragraph of the complaint that appellee, at the special instance and request of the contracting company, “furnished certain material and rendered certain work in the repair of certain locomotive boilers used in constructing a new railway and line of railroad tracks for appellant in said county, a correct and detailed account of which is attached hereto as ‘Exhibit A.’ That on the - day of February, 1906, the said contracting company having failed to pay said claim, the plaintiff announced and advised the defendant company that he would file a lien upon said property and upon the right of way of the defendant company and take such other steps by way of attachment of the property of said contracting company as was necessary to secure and enforce the plaintiff's said claim and employed counsel for such purpose. That the defendant company being fully informed and advised of the aforesaid purpose of the plaintiff, on the 17th day of February, 1906, in writing, a copy of which is made a part hereof as ‘Exhibit B,’ notified and agreed with the plaintiff that the defendant company would settle the bills and accounts of the said contracting company, including the plaintiff's said account, and requested of plaintiff that no lien or judgments be taken against said work. That the plaintiff accepted said proposal and at once advised the defendant company thereof, relying upon the defendant's promise, agreement, and stipulation, aforesaid, and in consideration thereof the plaintiff waived the filing of any notice of mechanic's lien to secure his said claim and the bringing of any suit in attachment or otherwise for the enforcement thereof, and, in lieu of his said rights, accepted and relied upon the aforesaid promise and agreement of the defendant company. That shortly thereafter the property of said contracting company, subject to lien, levy, or attachment, was removed from said county and state, and the property and affairs of said company was taken charge of by a receiver in bankruptcy in the United States courts for the Northern district of Ohio. That thereafter, and after the plaintiff could no longer secure a lien for his said labor and material or levy upon or attach the property of said contracting company, and after the failure and insolvency of said company, as aforesaid, the defendant corporation notified the plaintiff that it declined and refused to pay said claim.”

The writing upon which this action is based, and which was made a part of each paragraph of the complaint, reads as follows: “Big Four Route. The Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. Cincinnati, Ohio, Feb. 17, 1906-Gentlemen: Your letter Feb. 14th. this company expects to settle all bills of the Ohio Contracting Company, not later than Wednesday February 21st. We do not desire any judgments or liens upon the work. Yours truly, H. H. Knowlton, Asst. Engr.”

The second paragraph of the complaint is substantially the same as the first.

The facts stated in the complaint show that appellee performed work and labor and furnished material in repairing the boilers in certain locomotive engines belonging to a certain contractor who was constructing a new roadbed and tracks for appellant; that this was done at the request of said contractor; and that the same was the debt of the said contractor, and not the debt of appellant. It is clear that appellee was not entitled to take or enforce any mechanic's lien on appellant's property for said work and materials under any law of this state in force in 1905 and 1906, when said work was done and said materials furnished. Potter Mfg. Co. v. A. B. Meyer & Co., 171 Ind. 513, 86 N. E. 837, and cases cited; Cincinnati, etc., R. Co. v. Shera, 36 Ind. App. 315, 73 N. E. 293;Mossburg v. United, etc., Co., 43 Ind. App. 465, 87 N. E. 992;Ferguson v. Despo. 8 Ind. App. 526, 34 N. E. 575. See, also, Fleming v. Greener, 90 N. E. 73;Indianapolis, etc., Tr. Co. v. Brennan, 87 N. E. 215;Cleveland, etc., R. Co. v. De Frees, 87 N. E. 722.

Placing a liberal construction upon the complaint in question, it may be interpreted to mean that the letter of appellant, upon which the action is based, was written with the full knowledge on the part of appellant that appellee was making a bona fide claim to a mechanic's lien upon its property for the payment of his claim, and intended to file notice of his intention to hold such lien, but that the same had not been filed, and, in addition to what is contained in the letter, that appellant also requested appellee to file no lien and to take no judgment against the work, and that appellee, construing this request, in connection with the letter, into a promise on the part of appellant that, if he would refrain from taking these steps, appellant would pay the claim, he at once informed appellant that he would file no lien and take no judgment against the work. So interpreted the pleading, it is sufficient to withstand an attack for the first time in this court. Parker v. Dillingham, 129 Ind. 542, 29 N. E. 23;Lowe v. Turpie, 147 Ind. 652, 683-685, 44 N. E. 25, 47 N. E. 150, 37 L. R. A. 233, and cases cited; Thompson v. Nelson, 28 Ind. 431;Sweitzer v. Heasley, 13 Ind. App. 567, 41 N. E. 1064, and cases cited; Colchen v. Ninde, 120 Ind....