Conlee v. Clark
| Decision Date | 21 January 1896 |
| Docket Number | 1,673 |
| Citation | 42 N.E. 762,14 Ind.App. 205 |
| Parties | CONLEE ET AL. v. CLARK ET AL |
| Court | Indiana Appellate Court |
From the Marion Superior Court.
Judgment affirmed.
J. A Pritchard, for appellants.
J. T Lecklider, for appellees.
OPINION
Appellees, the Clarks, sued to foreclose a mechanic's lien against property owned by the appellant Conlee, who answered by a general denial. The trial resulted in finding and judgment for appellees, over appellants, motion for new trial.
The insufficiency of the evidence is the cause for new trial presented to us.
In the consideration of the evidence it must be borne constantly in mind that we are not permitted to determine the weight of the evidence. We are simply permitted to say whether or not there is some evidence fairly sustaining every material fact, looking at the evidence in the light most favorable to the party who succeeded in the trial court. Where there is a conflict we must accept the conclusion of the trial court which decided thereon in favor of the appellees. Currie Fertilizer Co. v. Byfield, 9 Ind.App. 180, 34 N.E. 451.
One Smith owned the real estate in question. He was engaged in building a house thereon, and in March, 1893, made a contract with the Clarks to do certain plumbing, including putting in a bath tub (furnished by Smith) and water closet for a specified sum. While the work was being done, about May 4th, Smith sold the property to appellant Conlee, who knew the work was not finished. By May 15th, the plumbers left the house, and appellees reported to Smith that the work was completed and asked about their money. On May 25th, appellant moved in, and upon lighting the fires found that the connections with the bath tub were not properly made, the hot water going to the closet box instead of to the tub. Appellant informed Smith of the fact, and he promised to see Clark. This Smith failed to do; appellant then called up Clark by telephone, told him what was wrong and asked him if he would fix it. He said he would, and sent a man up who used a small amount of material, and in a short time put the pipes in proper working condition. For this appellee made no charge and so informed the appellant. Both Smith and appellant believed the work to have been properly completed until the defect was discovered. Appellant and others testify that this last work was done on May 27th or 26th, but appellee and the workman swear it was on June 2d. On July 31st, appellees filed the notice of their lien. About July 5th, appellant settled with Smith, and paid him for the property.
In June, appellee informed appellant that the bill was unpaid. Appellant then asked Smith about it, but he asserted it was paid. The contract between Smith and appellant had been that the deed should be left in escrow and the money paid and deed delivered when receipts were furnished for all bills against the house. For some reason, however, appellant concluded to accept the deed, and relied upon Smith's statement that the bills either had been or would be paid, just what these representations were it is somewhat difficult to determine from the evidence. Appellant says at one place, "I only know this, that when I finally settled with Mr. Smith, Mr. Smith told me at that time that the money I gave him would pay all the claims."
Both the appellant and the appellee testify that the work was not properly completed without the additional labor. The appellant's testimony being:
Thus the evidence is direct that the contract was not in fact performed until these pipes were properly connected. From the very nature of the case also, it seems to us that there was a substantial failure to fulfill the terms of the contract until this was done. It is true the work appeared to be complete until it was tested, but yet it was not in fact in condition to substantially accomplish the purpose desired until the proper connections were made.
Taking the evidence altogether, we think the court was justified in finding that the last work was done by appellees at appellants' request, in good faith, for the purpose of completing and fully performing their contract.
Appellants' counsel argue very earnestly, and with much force, that since this last work was done simply to correct appellees' own mistake, or to remedy the defect caused by their own negligence, and they neither made nor were entitled to make any charge therefor, it cannot be considered as fixing the time from which the period allowed for filing the lien dates.
The case of Harrison & Bro. v. Homoeopathic Assn., 134 Pa. 558, 19 A. 804, and possibly some other Pennsylvania cases do indeed sustain this view, but we cannot regard it as in consonance with the spirit of our statute, nor in harmony with the weight of authority. Counsel also lay stress upon the fact that appellant is an innocent purchaser. We do not see how he can be said to occupy that position.
When he purchased the property the work was manifestly incomplete. He was thereby apprised that it was liable to liens. When he paid for it the time for filing a lien had not yet expired, even if it be dated from its apparent completion, as claimed by appellant. He had been expressly informed in June that the bill was not paid. If he relied upon Smith's statement to the contrary, he must abide by the results of his own misplaced confidence. Moreover, if the time for filing the lien was extended by the last labor done, this was performed at his special instance and request, and he must be deemed chargeable with the knowledge of the legal consequences of his own act. The cases other than those in Pennsylvania relied upon by appellant do not, in our opinion, lend his position substantial support.
By Noel v. Temple, 12 Iowa 276, it is decided that the house was actually completed without the additional work, which was a mere matter of form to enable the mechanic to gain a priority of lien, and therefore, not to be regarded.
In Dunn v. McKee, 5 Sneed 657, the opinion is quite meager. The house was completed in August, 1853, and the additional work was repairing a leak in the roof in April, 1854. Whether done to save litigation merely, or to remedy a defect in the original execution of the work, does not appear. It was not shown to have been done in completion of the contract, and the decision of the court is that the "conclusion is almost irresistible" that the work had been completed at a time prior to such repairs.
In Flint v. Raymond, 41 Conn. 510, the performance of three hours' work was purposely delayed for nine months (during which the rights of mortgagees accrued) "in order to keep alive their right to an incumbrance upon the property should Raymond fail to pay them after giving him such time for the purpose as they were led by a friendly regard to do." There was here a manifest perversion of the purpose of the statute. The court then holds that "after a contract is substantially completed there should be no unnecessary or unreasonable delay in fully completing the work to be done," and that the lien must be taken within sixty days from such substantial completion. In Sanford v. Frost, 41 Conn. 617, the unexplained delay in doing a "trifling amount" of work upon an apparently completed building, was six months, and a bona fide purchaser had intervened. The above case was there followed.
In the later case of Cole v. Uhl, 46 Conn. 296, the delay was from December 1st to February 27th. The court held it distinguishable from both the above cases because the additional work was, although still small, greater in amount, and the time comparatively short, but more especially because the delay was by the original party to the contract.
In Nichols v. Culver, 51 Conn. 177, the house was substantially completed September 25th. The whole work came to $ 2,756.00. November 22d...
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