Fleming v. Greener

• Decision Date: 09 March 1909
• Docket Number: 21,185
• Citation: 90 N.E. 73,173 Ind. 260
• Parties: Fleming et al. v. Greener et al
• Court: Indiana Supreme Court

90 N.E. 73

173 Ind. 260

Fleming et al. v. Greener et al

No. 21,185

Supreme Court of Indiana

March 9, 1909

Rehearing Denied December 16, 1909, Reported at: 173 Ind. 260 at 268.

From Dubois Circuit Court; E. A. Ely, Judge.

Suit by Andrew J. Greener and others against Robert H. Fleming and others. From a decree for plaintiffs, defendants appeal. Transferred from Appellate Court under § 1394 Burns 1908, subd. 1, Acts 1901, p. 565, § 10 (See 41 Ind.App 77).

Reversed.

Fields & Harmon, W. E. Cox, R. W. Armstrong, Herbert Jackson and Frank B. Shutts, for appellants.

Leo H Fisher, A. L. Gray, William A. Ketcham, W. A. Traylor and Bomar Traylor, for appellees.

OPINION

Monks, J.

This appeal is from decrees entered in favor of the appellees against appellants the Southern Railway Company, the Southern Railway Company of Indiana, and others, declaring and enforcing, among other relief, liens in favor of a subcontractor and in favor of the assignees of claims for labor, under what is known as the mechanics' lien law of this State.

Objection is made to the assignment of errors, on the ground "that it is joint and is not good as to all who join in it, and therefore is not good as to any of them." The errors assigned, however, are joint as to all the appellants except Waidley, and several as to each of said appellants. It appears from the special findings that said appellants railway companies entered into a contract with appellant McDonald for the construction by him, on the line of their railroad, of a cement bridge and culvert, and that McDonald sublet a part of the work to appellant Waidley. There was no promise or agreement in the contract of McDonald with the railway companies to pay persons who performed labor or furnished material, but only that the railroads, when the work was completed, should be free from all labor or other liens on account of said work. To secure the faithful performance of said contract by said McDonald, the National Surety Company of New York executed a bond to said railway companies. There was no provision in said bond to pay for material or labor, but only a general provision that said McDonald would comply with the covenants in his said agreement. At the same time said appellants McDonald, the Southern Contracting Company and Robert H. Fleming executed to said surety company a bond to indemnify and save it harmless against all losses, payments, and liabilities on account of its said bond to said railway companies.

After a part of said work had been performed by said McDonald under his contract and by said Waidley under his subcontract, said McDonald, by and with the consent of said railway companies and the parties to said surety and indemnifying bonds, assigned and transferred all of his rights and interests in and to the unfinished part of his said contract to his surety and coappellant, the Southern Contracting Company, by a written contract, which provided, among other things, that said contracting company should be bound by, and carry out and complete the work under the contract of said McDonald, and should be paid any amount due for work done by said McDonald under said contract, but should not be bound or required to pay any of the liabilities of said McDonald, except to said railway companies, and to indemnify said companies and protect them from liabilities or liens on their property on account of the acts of said McDonald. Vouchers and checks for the sums due to said McDonald under his contract with said railway companies, one for $ 1,452.92 and one for $ 893.10, in all $ 2,346.02, were turned over and paid to said Southern Contracting Company by said railway companies. McDonald and Waidley each employed a large number of persons to perform work and labor in the construction of said bridge and culvert, and purchased from various persons material to be used in said work. They issued to those to whom they respectively became indebted for such labor and material written evidences of such indebtedness, called time checks.

The holders of these checks, without having filed notice of an intention to hold a lien on said railroad for their claims as provided by the statute, for a valuable consideration assigned said time checks, by indorsement in writing, to appellees Greener Brothers, who afterwards, in their own name and in the names of their assignors, filed in the office of the recorder of the county wherein said work was done notice of their intention to hold a lien on said railroad for their labor claims, to which notice they also appended the names of their assignors, without authority to do so, except as such authority might be inferred from the assignment of the time checks.

Appellee McLaughlin "had three and sometimes four teams at work, and he employed men to drive them, he driving one himself. He paid his employes out of his own pocket, and his employes and teams performed work on said railroad under a contract with Waidley, the subcontractor, to the value of $ 255.20, for which he filed a notice of his intention to hold a lien upon said railway companies' railroad in said county," under the mechanics' lien law of this State.

The court below stated conclusions of law in favor of Greener Brothers, assignees of said time checks for labor and material issued by McDonald, and by McDonald and Waidley, against said McDonald and Waidley, said railway companies, and against the National Surety Company, the Southern Contracting Company, and Robert H. Fleming, appellants on said surety and indemnifying bonds, and rendered personal judgments against them, together with attorneys' fees, because the same were liens on the road of said railway companies under the law known as the mechanics' lien law of this State. Conclusions of law were stated in favor of said Greener Brothers against said Southern Contracting Company for the amount of $ 2,346.02 and in favor of Bretz, receiver of Waidley, for $ 1,452.92, being a part of said sum of $ 2,346.02 received by said contracting company from said railway companies due from them to said McDonald, with interest thereon. A conclusion of law was stated in favor of Bretz, receiver of Waidley, on his subcontract against said railway companies for the amount due thereon, with attorneys' fees, by virtue of what is known as the mechanics' lien law of this State. A conclusion of law was stated in favor of McLaughlin for the amount due him under his contract with said Waidley, together with interest and attorneys' fees against said railway companies, under the provisions of what is known as the mechanics' lien law of this State, and judgment was rendered against said railway companies therefor.

It was held by this court, in the case of Indianapolis, etc., Traction Co. v. Brennan (1910), 174 Ind. , that the term "laborers," as used in the title of the mechanics' lien act of 1883 and its amendments (Acts 1899, p. 569, Acts 1889, p. 257, §§ 2, 3, 4, 6, Acts 1883, p. 140, §§ 4, 7-11, 13, 14, §§ 8295-8307 Burns 1908), "does not include or apply to the class of persons known as contractors, but must be construed as applying only to and including mechanics, laborers and materialmen; that to construe said sections so as to apply to contractors or to persons other than mechanics, laborers and materialmen would make the same to that extent in violation of article 4, § 19, of the Constitution of this State, for the reason that mechanics, laborers and materialmen are the only persons within the scope of the title of the act." It is evident, therefore, that any provision in said act giving any one except "mechanics, laborers and materialmen" a lien is in violation of said article 4, § 19, of the Constitution of this State, and therefore is void because not expressed in the title of the act. We therefore hold, upon the authority of Indianapolis, etc., Traction Co. v. Brennan, supra, that the conclusion of law stated in favor of Bretz, receiver of Waidley, against said railway companies, and the conclusion of law in favor of McLaughlin against said railway companies are erroneous, because said Waidley the subcontractor and said McLaughlin (at least as to labor not performed by himself) are not mechanics, laborers or materialmen, and therefore are not entitled to the benefit of the act of 1883, supra, and the amendments thereof.

We shall next consider whether the assignment of said labor claims to Greener Brothers carried to the assignees the right to perfect the lien allowed by the provisions of §§ 8305, 8306 Burns 1908. In the case of Jenckes v Jenckes (1896), 145 Ind. 624, 44 N.E. 632, this court, speaking of such claims, said on page 634: "Such claims may, of course, be assigned, but they carry no lien, unless a lien has first been perfected by the mechanic or materialman in whose favor the right to the lien primarily exists. The right to the lien is in the mechanic, laborer or materialman, and it is only such mechanic, laborer or materialman that may perfect the lien; and it is only after the lien has been perfected, as in the case of any other lien, that it may be assigned." It is clear that § 8305, supra, giving a lien to persons...