Cummings v. Emslie
| Decision Date | 22 October 1896 |
| Docket Number | 6769 |
| Citation | 68 N.W. 621,49 Neb. 485 |
| Parties | THOMAS CUMMINGS, APPELLEE, v. BENJAMIN EMSLIE ET AL. APPELLEES, IMPLEADED WITH JOHN G. WILLIS, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Douglas county. Heard below before FERGUSON, J.
AFFIRMED.
John W Lytle, for appellant.
Smith & Sheean, W. M. Cowherd, Silas Cobb, Curtis & Shields, Donovan & Evans, George M. O'Brien, and W. T. Nelson, contra.
This action was brought by the appellee, Thomas Cummings, to foreclose an alleged mechanic's lien upon lot 19, in block 2, Idlewild addition to the city of Omaha, the defendants therein being Benjamin Emslie, the owner of the title to the property described, Dan Burr, George Gilbert Benjamin Ames, the Phoenix Foundry Company, Wyatt Bullard Lumber Company, John J. Rounds, Edward Barrick, Wearne Brothers, John Swisher, and Joseph Haines, who claim mechanics' liens thereon, and John G. Willis, whose interest is that of a mortgagee. The latter filed a cross-bill setting up his mortgage for $ 3,237, which bears date of January 1, 1891, and praying for an accounting and decree of foreclosure, to which Burr, Gilbert, Rounds, and the Wyatt Bullard Lumber Company filed answers, in all of which it is alleged that on or about May 1, 1891, the said Willis entered into a verbal agreement with his co-defendant Emslie, whereby the latter agreed to erect upon the mortgaged premises a two-story brick building, and whereby "the said Willis promised and agreed to take a first mortgage upon the said premises for the sum of $ 500, and to subject the balance of his claim against the said Emslie to all the claims for work, labor, and material furnished to the said Emslie by any and all persons whomsoever for the erection of the said brick building." It is further alleged by the defendants named that they were advised by Emslie of said agreement, and that the work, labor, and material claimed for was furnished pursuant to contract with the latter in the construction of the building thus provided for, and upon the faith of the agreement above mentioned. Issue was joined by a general denial of the allegations of said answers, and a hearing had, resulting in a decree for Willis in the amount of his note and mortgage, of which the sum of $ 1,000 is declared to be a first lien upon the mortgaged premises and the balance of $ 1,673.93 subordinated to the liens of his contesting co-defendants, and from which an appeal is by the former prosecuted to this court.
The only question presented by this appeal is whether Willis was in a legal sense, a promoter of the building in question, so as to give the liens of laborers and material men contributing thereto priority over the lien of the mortgage. Gilbert, one of the contesting defendants, referring to an account rendered to Emslie for brick and labor employed in the construction of said building, testified as follows:
He [Emslie] said it was all right and told me if I would go with him to Mr. Willis I would get my $ 50.
Q. Did he ever pay you anything upon that work that you performed there?
A. Well, he and I went over to Mr. Willis.
Q. Very well, you may state when, and the circumstances connected with the payment of it.
A. I asked him for $ 100 and he said that if I would go over with him to Mr. Willis he could get it for me from Mr. Willis. I went over and Mr. Willis paid me $ 50 with the understanding that he would pay me $ 50 more the following Saturday provided I would go on and finish up the walls of the second story. I agreed to do so. The Saturday came, but he never paid me the...
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