Drexel v. Richards

• Decision Date: 06 May 1896
• Citation: 48 Neb. 322,67 N.W. 169
• Parties: DREXEL ET AL. v. RICHARDS ET AL.
• Court: Nebraska Supreme Court

48 Neb. 322

67 N.W. 169

DREXEL ET AL.

v.RICHARDS ET AL.

Supreme Court of Nebraska.

May 6, 1896.

Syllabus by the Court.

1. The right to a lien secured by the provisions of section 2, art. 1, c. 54, Comp. St., does not depend upon the terms of the contract between the owner of the building and the original contractor, but upon the ground that the subcontractor furnished material or performed labor in the erection of the building, and that he has complied with the requirements of said section.

2. To entitle a subcontractor to a lien, he must file in the office of the county clerk, within 60 days from the date of the last item of material furnished or labor performed, the sworn statement required by said section 2.

3. Evidence examined, and held to sustain the decree of the district court refusing plaintiffs a lien.

Appeal from district court, Buffalo county; Holcomb, Judge.

Action by Fred Drexell and others, partners as Drexell & Foll, against James Richards and others, partners as Richards & Co., and others. From a decree for defendants, plaintiffs appeal. Affirmed.B. G. Burbank, for appellants.

Calkins & Pratt and Kennedy, Gilbert & Anderson, for appellees.

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 laborand 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, Drexell & 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 60 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, Drexell & 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., Drexell & 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, and 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 and Bartlett are entitled to a decree canceling 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 60 days prior to the filing of 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 60 days before the...