Ewart v. Henderson

• Decision Date: 10 May 1890
• Court: Kansas Supreme Court
• Parties: DEATHERAGE & EWART v. ELI HENDERSON

23 P. 1052

43 Kan. 684

DEATHERAGE & EWART v. ELI HENDERSON

Supreme Court of Kansas

May 10, 1890

Error from Wabaunsee District Court.

ON the 26th day of August, 1885, Charles P. Deatherage and William I. Ewart, under the firm-name of Deatherage & Ewart commenced their action against Eli Henderson et al., upon an account for lumber and building materials, and also to enforce their alleged lien. On December 16, 1885, a trial was had by the court, and judgment given in favor of Henderson denying plaintiffs' lien. This judgment was reversed at the July term of this court for 1887, and the cause remanded for a new trial. (37 Kan. 63.) The new trial was had on October 22, 1887. The jury returned the following special findings of fact:

"1. Was the lumber, for which plaintiffs claim a lien, sold by them on the general credit of George A. Woods alone, without intending to obtain any security by virtue of a mechanics' lien, if their claim should not be paid by Woods? A. Yes.

"2. Was George A. Woods the agent of plaintiffs for the purpose of collecting the amount due for the lumber? A. Yes."

The court made and filed the following findings of fact:

"1. In the month of March, 1885, defendant George A. Woods agreed with defendant Eli Henderson to furnish him certain lumber to be used by Henderson in the erection of a building on lots owned by Henderson in Harveyville, Kansas.

"2. Said Woods purchased said lumber, which he had agreed to furnish to Henderson, from the plaintiffs, at Kansas City Mo., and said lumber was shipped by plaintiffs to said Woods on a car with other lumber, but in a separate lot, marked 'E. H.;' and that plaintiffs were general lumber merchants at Kansas City, Mo.

"3. The value of said lumber, so sold by plaintiffs to said Woods, was at the time of shipment, April, 1885, $ 144.91 and the same has not been paid to plaintiffs by said Woods, or any other person.

"4. Said Henderson took said lumber from the car on which it was shipped, at Harveyville, Kansas, on the 10th day of April, 1885, and afterward used all of it in the erection of a building on lots 7 and 8, in block 5, in Harveyville, Kansas, the same being the building he was intending to erect for which said Woods agreed to furnish the lumber.

"5. Said building was completed on the 16th day of May, 1885.

"6. Henderson paid Woods in full for said lumber at the time he received it, to wit, April 10, 1885, by giving Woods credit for the amount of the bill on an account owing by Woods to him, commencing in December, 1883.

"7. On the 14th day of July, 1885, plaintiffs filed in the office of the clerk of the district court of Wabaunsee county a statement for a sub-contractor's lien, according to law, against said Henderson and said building and lots on which it was erected.

"8. On the 25th day of July, 1885, plaintiffs caused to be delivered to Henderson, personally, a copy of said statement for a sub-contractor's lien.

"9. When Woods agreed to furnish said lumber to Henderson he knew that Woods would procure same from some other person and place, and that when plaintiffs sold said lumber to Woods they knew and understood that it was being procured by Woods to be used by some other person in the erection of a building in or near Harveyville, Kansas.

"10. At the time of the purchase of said lumber from George A. Woods, Henderson did not know where the lumber was to be procured by Woods, nor from whom."

Subsequently, the court made and filed the following conclusions of law:

"1. Plaintiffs are entitled to recover from George A. Woods the sum of $ 144.91, with interest thereon from the 20th day of March, 1885.

"2. Plaintiffs are not entitled to a lien upon the real estate described in the petition and the building erected thereon by Henderson."

Judgment was entered upon the conclusions of law in favor of Henderson, and against the plaintiffs, again denying plaintiffs' claim for any lien. The plaintiffs excepted, and bring the case here.

Judgment reversed and cause remanded.

Botsford & Williams, for plaintiffs in error.

Hazen & Isenhart, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This was an action in the court below by Deatherage & Ewart, to recover $ 144.91 for lumber, and to enforce a sub-contractor's lien for the same. They claim that George A. Woods was the contractor, and Eli Henderson the owner of the building and premises. The lumber was purchased in April, 1885, and used by Henderson in the erection of a building on lots 7 and 8, in block 5, in Harveyville, in this state. The building was completed on the 16th day of May, 1885. A statement for a sub-contractor's lien was filed on the 14th day of July, 1885. A copy of the statement was furnished to Henderson, the owner of the premises, on the 25th of July, 1885. In determining whether Deatherage & Ewart are entitled to a lien, the provisions of the civil code relating to liens of mechanics and others, in force in 1885, control. (Comp. Laws of 1885, art. 27, p. 685.) The trial court rendered judgment against George A. Woods for the sum of $ 144.91, with interest, but decided that the plaintiffs were not entitled to a lien upon the building and premises owned by Henderson.

This case has been to this court before, and is reported in 37 Kan. 63. The only question involved upon the former hearing was, whether the plaintiffs' statement for a mechanics' lien was sufficient. This court held the statement sufficient, and therefore ordered a new trial. Upon the second trial the following questions were submitted to the jury:

"1. Was the lumber, for which plaintiffs claim a lien, sold by them on the general credit of George A. Woods alone, without intending to obtain any security by virtue of a mechanics' lien, if their claim should not be paid by Woods? A. Yes.

"2. Was George A. Woods the agent of plaintiffs for the purpose of collecting the amount due for the lumber? A. Yes."

It is clearly apparent that the trial court decided against the lien of plaintiffs on account of these findings. But for the findings of the jury, a judgment enforcing the lien of plaintiffs should have been entered upon the findings of fact of the trial judge. The findings, however, of the jury, do not justify any judgment. They are conflicting with each other, and the evidence to sustain them is wholly unsatisfactory. Ewart, one of the plaintiffs, testified that in making all sales, both in Missouri and in Kansas, on bills of this kind, his firm did so with the knowledge that they had the right to a mechanics' lien, provided the parties were not good.

Where materials are furnished and placed in a building, if there be nothing showing a different intention, a jury would be warranted in finding that they were furnished to be used in such building. So if it appear that materials furnished were used in the erection of the building on which a lien is claimed, unless it is shown that they were intended for another purpose, it will be presumed that they had been contracted for to be used in the building. (Power v McCord, 36 Ill. 214; Martin v. Eversal, 36 id. 222.) Under the statute, the mere fact that the materials were...