Eakins v. Frank

• Decision Date: 13 June 1898
• Citation: 53 P. 538,21 Mont. 192
• Parties: EAKINS v. FRANK et al.
• Court: Montana Supreme Court

53 P. 538

21 Mont. 192

EAKINS v. FRANK et al.

Supreme Court of Montana

June 13, 1898

Appeal from district court, Silverbow county; John Lindsay, Judge.

Action by John Eakins against H. L. Frank and another. From a judgment for defendant Frank, plaintiff appeals. Affirmed.

J. A Bender, for appellant.

W. B Rodgers and Charles R. Leonard, for appellees.

HUNT J.

This action was instituted to obtain a decree of foreclosure of a mechanic's lien. Plaintiff averred that he furnished to M. J. McCune, also a defendant, material and labor for a certain building erected for and owned by the defendant Frank at Butte. Frank answered separately, and set up a contract with the defendant McCune, whereby McCune agreed to furnish the materials and to do the work described in plaintiff's complaint in consideration of the sum of $3,812, and pleaded a bond executed by said McCune, as principal, and the appellant, Eakins, and one J. F. Kelly, as sureties, to secure the faithful performance of the contract of McCune principal contractor. The contract provided that McCune should furnish all materials for and build and complete the building involved; and that during the progress of the work Frank might make any changes he pleased in the plans without impairing the validity of the contract, the cost of such changes to be added to or deducted from the amount due the contractor. The undertaking referred to contained the following provision: "And shall not suffer any liens or incumbrances to be placed upon said building, or the land upon which it is to stand, or any part thereof, for any work or materials performed or furnished by said M. J. McCune in the performance of said contract, and shall in all respects save the said H. L. Frank free and harmless from all loss liens, damage, delays, or liability of any character by reason of the default of the said M. J. McCune in the performance of any of the provisions of said contract on his part, then the foregoing obligation to be null and void otherwise to be and remain in full force and effect." Frank pleaded that plaintiff was estopped from claiming or enforcing a lien upon the property, and set up a counterclaim, alleging that various liens were filed upon the property which he was obliged to discharge by payment, and claiming that the contractor was guilty of certain delays, whereby, under the terms of the contract, the contractor became liable to pay certain liquidated damages. The agreement between Frank and McCune is made a part of the answer; so is the undertaking of McCune and the sureties. The plaintiff filed a replication, in which he admitted the contract between McCune and Frank, and pleaded performance of the same. He also admitted that McCune, as principal, and himself and one Kelly, as sureties, entered into an undertaking with Frank wherein they severally undertook and bound themselves in the sum of $3,000; but averred that the conditions of such undertaking were as set forth in the replication. The plaintiff then set up the contract between Frank and McCune, yet denied that one of the conditions of the undertaking referred to was that McCune should not suffer any lien or liens to be placed upon the building, or upon the land upon which the same was to be built, for work or material furnished the said McCune, and alleged that the lien filed by himself was not filed by reason of the default of McCune in the performance of any of the provisions of the contract on the part of McCune. Plaintiff also denied that McCune delayed the completion of the building as alleged or at all. For reply to the counterclaim he set up that, in consideration of the said McCune and Kelly and plaintiff entering into said undertaking, an agreement was made by Frank to pay to McCune the sum of $3,812 for materials furnished and work done by McCune, but that Frank had not paid to McCune the said sum of money. He then pleaded that it was part of the agreement between Frank and McCune, and part of the consideration of the bond entered into, that Frank might change or modify the plans and specifications of the building, and that the difference in cost should be added to or deducted from the amount due said McCune; and that Frank did make certain changes and modifications in the plans and specifications, and that the difference of cost to McCune was thereby greatly increased, to wit, in the sum of $1,844.97; and that Frank refused to pay said amount, or any part thereof, to McCune. Plaintiff also averred that Frank further agreed with McCune, and as a part of the consideration for the bond entered into, that, in the event of disputes arising between the parties to the contract, the architect was appointed sole arbitrator, and his decisions were to be final, and that the architect did decide upon matters of differences between them, and found and certified to the same, and that Frank was indebted thereby to McCune in the sum of $2,012, which amount Frank refused to pay. A jury was sworn. Plaintiff was put upon the stand, and asked if he had furnished the brick to McCune, the contractor, to build the building described in the complaint. Objection was interposed to the introduction of any evidence on the part of plaintiff tending to establish his claim to a lien on the ground that it was incompetent, irrelevant, and immaterial. The court sustained the objection, and held that the plaintiff could not introduce any evidence to establish a lien, being...