Coates Lumber & Coal Co. v. Klaas

• Decision Date: 08 July 1918
• Docket Number: 19928
• Citation: 168 N.W. 647,102 Neb. 660
• Parties: COATES LUMBER & COAL COMPANY, APPELLEE, v. A. F. KLAAS: CHARLES W. BASKINS, APPELLANT
• Court: Nebraska Supreme Court

168 N.W. 647

102 Neb. 660

COATES LUMBER & COAL COMPANY, APPELLEE, v. A. F. KLAAS: CHARLES W. BASKINS, APPELLANT

No. 19928

Supreme Court of Nebraska

July 8, 1918

APPEAL from the district court for Lincoln county: HANSON M. GRIMES JUDGE. Affirmed.

AFFIRMED.

C. L Baskins, for appellant.

Hoagland & Hoagland, contra.

DEAN J. SEDGWICK, J., dissents. HAMER, J., not sitting.

OPINION

DEAN, J.

Plaintiff began this action in Lincoln county to recover on a mechanic's lien for building material furnished to A. F. Klaas, who contracted with defendant Baskins to erect a building for him. Plaintiff recovered a judgment for $ 636, from which defendant Baskins appealed.

The action was brought under sections 3823, 3824, Rev. St. 1913. So much of section 3823 as applies to the present case reads: "Any person who shall perform any labor or furnish any material * * * for the erection * * * of any house, * * * by virtue of a contract or agreement, expressed or implied, with the owner thereof or his agents, shall have a lien to secure the payment of the same upon such house, * * * and the lot of land upon which the same shall stand." The section following, namely, section 3824, provides generally that to perfect such lien a sworn statement must be filed by the claimant in the office of the register of deeds of the county where the land is situated, within sixty days after the labor is performed or the material is furnished, setting forth the amount of the labor performed or material furnished as the case may be. This section also provides that the subcontractor shall have a lien upon the "lot or lots and the improvements thereon from the same time and in the same manner as such original contractor; and the risk of all payments made to the original contractor shall be upon the owner until the expiration of the sixty days hereinbefore specified."

The language last cited can scarcely be construed to mean that, unless it can be shown that the owner is indebted to the contractor, the subcontractor cannot "have a lien to secure the payment" of his claim either for labor or material. To so construe the act would be to prepare the way for a cunning and unscrupulous owner and an equally unprincipled contractor to so contrive together as to defeat the valid claims of those whom the statute was enacted to protect. This language from the act, "and the risk of all payments made to the original contractor shall be upon the owner until the expiration of the sixty days hereinbefore specified," clearly contemplates that the owner shall be held to the limit of time specified in the act for the value of the labor and material that is furnished to the contractor and that is appropriated and used by such contractor in the repair or erection of the owner's building.

In his brief defendant argues: "That the subcontractor, laborer, and materialman are limited in the recovery on their liens to the original contract price where all the money arising from the contract between the owner and the contractor is applied upon the payment of the liens. Subcontractors, laborers, and materialmen are bound to take notice of the original contract as existing between the owner and original contractor."

The sections of the law under consideration should not be given the construction insisted upon by defendant. In support of his contention he cites Frost v. Falgetter, 52 Neb 692, 73 N.W. 12, but that case upon analysis does not seem to find support in the statute. It was there held: "Where a contractor agrees in writing with the owner of real estate to furnish the labor and material and erect thereon a building, and in payment for such services to accept a conveyance from such owner of certain real estate described in said contract, such contractor is not entitled to a lien on the real estate on which he erects the improvement, in the absence of fraud or a failure of the owner to make the conveyance promised. In such case a subcontractor who has furnished labor or material to the contractor for such improvement cannot assert a lien against the owner's real estate." In the body of the opinion it is said: "This statute contemplates a contract between the owner of real estate and a contractor in and by which the owner shall pay the contractor money for erecting an...