Dierks v. Walrod
| Decision Date | 06 June 1885 |
| Citation | 23 N.W. 751,66 Iowa 354 |
| Parties | DIERKS BROS. & LAMSON v. WALROD & SON ET AL |
| Court | Iowa Supreme Court |
Appeal from Shelby Circuit Court.
ACTION in equity to foreclose a mechanic's lien. It is alleged in the petition that plaintiff sold certain building materials to defendants Walrod & Son, which were used by them in the erection of a building on a lot owned by them in the town of Irwin; that a settlement of the account was afterwards had with them, by which it was determined that the amount of the indebtedness was $ 354.21, for which amount they gave their promissory note due in fifty days, with ten per cent interest; and that plaintiffs filed in the clerk's office a true statement of their demand for said materials, verified by affidavit. It is also alleged that the defendant Empkie asserts some claim or interest in the property covered by said mechanic's lien, but that his interest is junior and inferior to plaintiffs' lien. Defendants Walrod & Son made no defense, and judgment was rendered against them by default. Defendant Empkie answered denying the allegations of the petition. He also alleged that he held a mortgage on the premises in question, and that the same was a superior lien on the premises to any claim or interest of the plaintiffs therein. By the judgment of the circuit court, plaintiffs' mechanic's lien is established as superior to defendant's mortgage. Defendant appeals.
REVERSED.
Wright Baldwin & Haldane, for appellant.
Macy & Gammon, for appellees.
The evidence introduced on the trial proves that plaintiffs delivered the building materials in question, under a contract entered into between them and Walrod & Son, and that they were used by the purchasers in the erection of an addition to a building, situated upon the lot on which plaintiffs seek to have their mechanic's lien established. It also proves that Walrod & Son, at the time the contract was entered into, and when the materials were delivered, were in possession of the lot, and were carrying on business as hardware merchants in the building situated thereon. But it is not shown who held the title to the property.
The mortgage under which defendant claims, was executed by J. J Walrod, who was a member of the firm of Walrod & Son, and it was given about ten months after the contract was made under which plaintiffs furnished the building materials. Appellant contends that the evidence does not show that the contract under which plaintiffs furnished the...
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