Drexel v. Richards

• Decision Date: 06 May 1896
• Docket Number: 6498
• Citation: 67 N.W. 169,48 Neb. 322
• Parties: FRED DREXEL ET AL., APPELLANTS, v. JAMES RICHARDS ET AL., APPELLEES
• Court: Nebraska Supreme Court

67 N.W. 169

48 Neb. 322

FRED DREXEL ET AL., APPELLANTS, v. JAMES RICHARDS ET AL., APPELLEES

No. 6498

Supreme Court of Nebraska

May 6, 1896

APPEAL from the district court of Buffalo county. Heard below before HOLCOMB, J.

AFFIRMED.

B. G Burbank, for appellants.

Calkins & Pratt and Kennedy, Gilbert & Anderson, contra.

OPINION

NORVAL, J.

This was a suit in equity by plaintiffs, as subcontractors, to foreclose a mechanic's lien. From a decree refusing a lien plaintiffs appeal.

The defendants, R. L. Downing and J. J. Bartlett, in August 1890, entered into a contract with the firm of Richards & Co. whereby the latter agreed to furnish all the material and perform all the labor and erect for Downing & Bartlett a brick and stone business block in the city of Kearney, for the agreed sum of $ 22,000. Richards & Co. thereupon sublet the cut stone and the stone work to plaintiffs, Drexel & Foll, for the stipulated price of $ 5,049. Their contract called for the carving of a certain granite column furnished and set by the subcontractors in the building. Plaintiffs completed their work according to plans and specifications, excepting said carving, which was never done, and on April 30, 1891, more than sixty days after the furnishing of the last item of materials and the performing of the last labor, plaintiffs filed an itemized account of said work and labor, duly verified, with the county clerk of Buffalo county, claiming a mechanic's lien upon the premises and building thereon erected for the full contract price. The court found upon the issues presented by the pleadings as follows:

"1. That the plaintiffs, Drexel & Foll, did not furnish the stone in the rough for the building in question, that being furnished by the Kearney Stone Works to Richards & Co., Drexel & Foll only cutting the same.

"2. That cutting the holes for putting up the shields and other iron work was no part of plaintiffs' contract, and that they did not in fact do or perform the same.

"3. That the plaintiffs did offer to carve the granite column on the 23d day of April, 1891, but that it had been agreed between the owners and principal contractors in the month of February, 1891, that this carving was to be dispensed with. The plaintiffs had completed their work in November or December, 1890, and had abandoned any further execution of the same, and that the offer to carve the column made in April was made after the building was turned over to the owners and was occupied by their tenants, and that said offer was not made in good faith as a continuation of the original contract, or as a part of it, but was made after abandoning their work, for the sole and only purpose of reviving their right to a lien.

"4. That said lien was not filed in the time required by law, and was and is void, and the defendants Downing & Bartlett are entitled to a decree cancelling the same."

It is argued that the first of the above findings is against the weight of the evidence. Whether this contention is well founded or not we shall not stop to consider, inasmuch, if said finding is wrong, still the decree must be affirmed for the reasons hereafter stated.

The second finding is not assailed by the plaintiffs, so far as we have been able to discover. Evidence was adduced upon the trial tending to prove that within sixty days prior to the filing of the plaintiffs' claim for a mechanic's lien some holes were drilled in the stones for putting up the shields and other portions of the iron work of the building in question. The purpose of this was to show that the lien was perfected and filed in time. The finding is, however, supported by ample testimony. There is in the bill of exceptions evidence tending to prove that the drilling of those holes was no part of plaintiffs' contract, but that it was the duty of the iron contractor to do this work. Moreover, that plaintiffs did not drill, or cause to be drilled, said holes, but even if it was for them to perform the work, the testimony shows that it was done, and the shields put up in February, 1891, more than sixty days before the filing of the claim for a lien.

A careful perusal and consideration of the testimony convinces us that it is ample to support the third and fourth findings, except as to the time stated when plaintiffs completed their work. Instead of the last work being done by them in November or December, 1890, it was on January 23, 1891, but this error is not material, since ninety days elapsed thereafter before the filing of the lien.

It is strenuously insisted that Bartlett & Downing are estopped by their conduct from now insisting that plaintiffs did not file their claim for lien within the statutory period of sixty days. This is based upon the fact that they forbade and refused to permit plaintiffs to carve the column on April 23 1891, when they went to Kearney for the purpose of...