Cline v. Indianapolis Mortar & Fuel Co.

• Decision Date: 24 October 1917
• Docket Number: No. 9328.,9328.
• Citation: 65 Ind.App. 383,117 N.E. 509
• Court: Indiana Appellate Court
• Parties: CLINE et al. v. INDIANAPOLIS MORTAR & FUEL CO. et al.

65 Ind.App. 383

117 N.E. 509

CLINE et al.

v.INDIANAPOLIS MORTAR & FUEL CO. et al.

No. 9328.

Appellate Court of Indiana, Division No. 1.

Oct. 24, 1917.

Appeal from Circuit Court, Marion County; Louis B. Eubank, Judge.

Suit by the Indianapolis Mortar & Fuel Company against Fred Cline and another. From the judgment rendered, defendants appeal. Affirmed.

Matson, Kane & Ross, of Indianapolis, for appellants. Frank Groninger, Taylor E. Groninger, and Ella M. Groninger, all of Indianapolis, for appellee.

BATMAN, J.

Appellee Indianapolis Mortar & Fuel Company filed its complaint against appellee, Ward B. Snyder, and appellants to foreclose a mechanic's lien against certain real estate owned by appellants, and for a personal judgment against appellee Snyder. The complaint is in a single paragraph, and alleges, in substance, among other things, that on the 27th day of September, 1912, appellants were and still are the owners of certain real estate in Marion county, Ind. (describing it); that while the owners thereof, appellants entered into a contract with appellee Snyder for the erection and construction of certain improvements thereon, by the terms of which he was to furnish all the necessary labor and material therefor; that in pursuance of said contract and in order to perform the same, said appellee ordered of it certain building material, as shown by the bill of particulars filed therewith, and made a part thereof, for the purpose of using the same in the erection and construction of said improvements; that it delivered said building material to said appellee on said real estate for such purpose, and the same was all used by said appellee, in the construction of such improvements in pursuance of his said contract with appellants, and was reasonably worth the amount charged therefor, to wit, $483.30; that on the 20th day of March, 1913, less than 60 days after said building material was furnished by it to appellants and appellee Snyder, as aforesaid, it filed in the office of the recorder of Marion county, Ind., its written notice of intention to hold a lien on said real estate for said amount, in which it set out a substantial description of said real estate, the amount claimed by it, and all other facts required by the statute governing such matters, a copy of which notice was filed therewith and made a part thereof; that said notice was duly recorded in said office on said date; that no part of its said bill has been paid, and that the same was past due and wholly unpaid. Demand for judgment for $650 and the foreclosure of its lien against said real estate. The copy of the notice filed with said complaint reads as follows:

“To Fred Cline and Bunie E. Cline and All Others Concerned: You are hereby notified that Indianapolis Mortar & Fuel Company intend to hold a mechanic's lien on the following property in county of Marion, state of Indiana, to wit: [Here follows description of real estate], as well as upon the house recently erected thereon by you and W. B. Snyder [contractor] for the sum of five hundred and five and 55/100 dollars ($505.55) for work and labor done, and materials furnished by us in the erection and construction of said house, which work and labor done, and materials furnished, and all other improvements, was done and furnished by us at your special request and instance and within the last sixty days.

Indianapolis Mortar & Fuel Co.,

By Chas. Pigman, Sec.”

Appellee Snyder suffered default, and appellants filed an answer in general denial. Trial by the court. Judgment against appellee Snyder for $514.12. Decree foreclosing lien against said real estate for $556.12. From this judgment appellants prosecute this appeal. The sole error assigned is based on the action of the court in overruling its motion for a new trial, in which it is alleged that the decision of the court is not sustained by sufficient evidence and is contrary to law.

[1] Appellants' first contention is that a notice of intention to hold a mechanic's lien, to be sufficient under the statute, shall state by whom the claim for which the lien is sought is owing, and that a failure to state such fact correctly is fatal to a recovery. They insist that the notice of intention filed with the complaint in this case states that the claim is due from them, while the complaint alleges, and the evidence shows, that such claim was due from appellee Snyder, and that such fact constitutes a variance, fatal to its right to foreclose its alleged lien against their real estate. An examination of the statute in question leads us to the conclusion that such contention cannot be sustained. It is generally held that a notice of intention to hold a mechanic's lien need not set out anything beyond that which the statute requires. 20 Am. & Eng. Ency. of Law (2d Ed.) 409; 27 Cyc. 110, 153; Mouat. L. & I. Co. v. Freeman, 7 Colo. App. 152, 42 Pac. 1040;Red River, etc., Co. v. Friel, 7 N. D. 46, 73 N. W. 203;Welsh v. McGrath, 59 Iowa, 519, 10 N. W. 810, 13 N. W. 638. The requirements of such a notice in this state are governed by section 8297, Burns 1914. It provides that any person wishing to acquire such lien shall file a “notice of his intention to hold a lien upon such property for the amount of his claim, specifically setting forth the amount claimed, and giving a substantial description of such lot or land,” etc. The statute thus specifically provides what must be set out in such notice, and fails to make any provision for stating by whom the claim is owing. The omission of such requirement from the statute renders any such statement in the notice unnecessary. Adams v. Buhler (1891) 131 Ind. 66, 30 N. E. 883;Lays v. Hurley, 215 Mass. 582, 103 N. E. 52;Peck v. Hensley (1863) 21 Ind. 344;Farmers', etc., Co. v. Canada, etc., Co. (1890) 127 Ind. 250, 26 N. E. 784, 11 L. R. A. 740;Clark v. Huey (1894) 12 Ind. App. 224, 40 N. E. 152;Springer, etc., Ass'n v. Ford, 168 U. S. 513, 18 Sup. Ct. 170, 42 L. Ed. 562;Corbett v. Chambers, 109 Cal. 178, 41 Pac. 873.

[2] The conclusion we have reached finds support in the well-settled rule that mechanic's lien statutes must be strictly construed, in determining the persons entitled to acquire and enforce such liens, but, being remedial in character, they should be liberally construed, in order to carry their object into effect in giving a lien to those entitled to their benefits. Rader v. A. J. Barrett Co. (1914) 59 Ind. App. 27, 108 N. E. 883;Deal v. Plass (1915) 59 Ind. App. 185, 109 N. E. 51;McNamee v. Rauck (1890) 128 Ind. 59, 27 N. E. 423;Indianapolis, etc., Co. v. Brennan (1909) 174 Ind. 1, 87 N. E. 215, 90 N. E. 65, 68, 91 N. E. 503, 30 L. R. A. (N. S.) 85. The fact that appellee furnished material for the construction of appellants' building brings it within the class entitled to the benefits of the statute in question, and entitled it to an application of the rule of liberal construction. To sustain appellants' contention, we would not only be required to deny an application of such rule, but go even further and ingraft a requirement neither directly nor inferentially imposed by the statute.

Appellants cite a number of c...