Eberle v. Drennan

Decision Date03 December 1912
Citation136 P. 162,40 Okla. 59,1912 OK 795
CourtOklahoma Supreme Court

On Rehearing November 4, 1913.

Syllabus by the Court.

Under section 2812, Comp. Laws 1909, a trial before a referee is conducted in the same manner as a trial by the court, and when he is to report the facts his report has the effect of a special verdict.

Section 6151, Comp. Laws 1909, requires that the labor or material for which a lien is claimed must be furnished under a contract with the owner of the land, but a contract made through the agency of one who is authorized to represent the owner, or whose acts are fully ratified by the owner with full knowledge of all the facts, is the contract of the owner of the land, within the meaning of the statute.

It is well settled that a defect of parties must be taken advantage of by demurrer if the defect appears upon the face of the pleading, otherwise by an answer, and if such objection is not made by way of demurrer or answer, then the defect is deemed to be waived.

Where the referee finds upon sufficient evidence that certain materialmen and laborers furnished material and performed labor which was used for the construction of a building under a contract with the contractor, such materialmen and laborers are entitled to obtain a lien upon the land whereon such building is erected, in accordance with the provisions of section 6153, Comp. Laws 1909.

The Supreme Court will not pass upon assignments of error based upon the action of the court below in sustaining a demurrer to a pleading, where the party complaining fails to comply with that part of court rule No. 25 (95 P. viii) which requires him to set forth the material parts of the pleading upon which he relies, together with such other statements from the record as are necessary to a full understanding of the questions presented to this court for decision, so that no examination of the record itself need be made in this court.

The provisions of the mechanics' lien law should be interpreted so as to carry out the object had in view by the Legislature in enacting it, namely, the security of the classes of persons named in the act, upon its provisions being in good faith substantially complied with on their part.

Where materials are furnished by a subcontractor to a firm of building contractors composed of K. & S., for the erection of a building, and in his statement for a lien such subcontractor names K. as the person with whom he dealt as the contractor, and where there is nothing to indicate that the owner of the land whereon the building was erected was misled or injured by the failure of the subcontractor to correctly state the name of the contractors, such subcontractor's lien will not be declared invalid by cause of such error.

Under the provisions of section 6156, Comp. Laws 1909, where an action is brought by a subcontractor or materialman to enforce a lien against the property of the owner, the original contractor is an indispensable party thereto.

Where however, in such case the original contractor during the construction of a building is adjudged a bankrupt, the bankruptcy trustee should be made a party defendant in actions by subcontractors or materialmen, and the unenforceable judgment taken against him made the basis upon which the liens claimed against the property are predicated.

Where on the construction of a building the principal contractor becomes a bankrupt, and the owner requests or consents to an order of the bankruptcy court directing the receiver or trustee of such contractor to complete his contract, and such order is made, the mere fact of bankruptcy of the original contractor will not preclude recovery against the owner, of the enforcement of a lien against the property for services rendered or materials furnished within the scope of the contract.

On an action brought to enforce against the property liens claimed by subcontractors and materialmen, and the original contractor is not made a party, the judgment will not be reversed and rendered, but the case will be remanded to allow such original contractor to be made a party, and a new trial granted therein.

Error from District Court, Oklahoma County; Wm. M. Bowles, Special Judge.

Action by R. H. Drennan against Lena L. Eberle and others. From the judgment, defendants Eberle bring error, and defendant Oklahoma Brick Company files cross-petition in error. Remanded on rehearing.

John S Hunter, of Oklahoma City, for plaintiffs in error.

Burwell Crockett & Johnson, of Oklahoma City, for Oklahoma Brick Company.

O. C Black, of Oklahoma City, and H. Y. Thompson, of Britton, for H. Y. Thompson, trustee.


This was a suit to foreclose a mechanic's lien, commenced by the defendant in error, R. H. Drennan, who was plaintiff below, against Lena L. Eberle and John M. Eberle, in which the other defendants in error and the cross-petitioner, the Oklahoma Brick Company, were made defendants. A referee made findings of fact and conclusions of law, upon which there was a decree entered in favor of all the lienholding defendants, except the Oklahoma Brick Company (and a few other claimants who did not appeal), whereupon Lena L. Eberle and John M. Eberle, plaintiffs in error, commenced this proceeding in error, to reverse the decree of the several lienholders, and the brick company appealed from the action of the court in refusing to allow its lien.

It seems: That on the 7th day of July, 1906, Robert Kruger and John M. Eberle signed a written contract in their own name, by the terms of which Kruger was to erect and complete a brick business house for Eberle on certain lots, which, it afterwards developed, belonged to Eberle's wife. In pursuance to said contract, said Kruger, together with one Henry Sessing, proceeded to erect the house upon said lots, and it was in furnishing materials to Kruger on this contract the liens sought to be foreclosed arose. That on the 19th day of December, 1906, and before the completion of said building, Robt. Kruger filed his voluntary petition in bankruptcy, and was on the same day adjudged a bankrupt, and Robt. Eacock was duly appointed receiver for the bankrupt estate, and the proceedings in bankruptcy were then and there duly referred to the referee in bankruptcy for final settlement. Thereafter the defendants in error filed with the clerk of the district court their several mechanics' lien statements against the property in controversy, and about the same time they each filed with the court of bankruptcy their money demand and claim against the estate of Robt. Kruger, bankrupt, covering the same items and subject-matter, and in like amount as set forth in their several mechanics' lien statements, except they did not plead their claim for a mechanic's lien in the bankruptcy court. Each of the claims thus filed were approved in favor of the claimants, and judgment rendered thereon against the estate of Robt. Kruger. Thereafter Mr. Drennan commenced this action, as aforesaid, making the Eberles the trustee in bankruptcy, and all the other lien claimants parties defendant.

The contentions of plaintiffs in error are indicated by the following propositions in the form of questions quoted from the brief of their counsel: "(1) Can a mechanic's lien be had, or maintained, where the contract for the improvement of a tract or piece of land is not made with the owner? (2) Can a subcontractor or materialman or workman bring an action and foreclose his mechanic's lien against the owners of property, where there is no privity of contract between the owner and such subcontractor or materialman or workman, without making the original contractor, or his personal representative, a party to such action, and procure first a personal judgment against the original contractor? (3) Were any of the mechanic's lien claimants in this case subcontractors or materialmen that come within the terms of our statute?"

The referee found, and his findings are entitled to the same weight as the special verdict of a jury, that John M. Eberle and Lena Eberle were husband and wife, and that the title to the property described was in Lena Eberle; that whilst the title to the land in question was in Lena Eberle, and the contract for the building was signed by John M. Eberle, yet he was acting as the agent of the wife in his transactions with Kruger, and all his actions were ratified by his wife, with full knowledge of all that had been done. As this finding is amply supported by the evidence, it disposes of the first contention of plaintiffs in error.

It is true, as contended by counsel, that the statute (section 6151, Comp. Laws, 1909) requires that the labor or material for which a lien is claimed must be furnished under a contract with the owner of the land, but a contract made through the agency of one who is authorized to represent the owner, or whose acts are fully ratified by the owner with full knowledge of all the facts, is the contract of the owner of the land within the meaning of the statute.

On the second proposition, the referee found that, the claims having been adjudicated and allowed in the bankruptcy court, the trustee being a party to this action, and a general prayer for relief being asked, the principal obligor is sufficiently a party to this action to entitle the parties otherwise entitled thereto to a foreclosure. No authorities are cited in support of this proposition by counsel for any of the parties. Counsel for plaintiffs in error cites some authorities to the effect that an original contractor is a necessary and indispensable party to an action to foreclose a mechanic's lien by a subcontractor. Phillips on Mechanics' Liens, § 395, p. 643; Rockel on Mechanics' Liens, § 229, p. 553; ...

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