Fleming v. Greener

• Decision Date: 09 March 1909
• Docket Number: No. 21,185.,21,185.
• Citation: 87 N.E. 719
• Parties: FLEMING et al. v. GREENER et al.
• Court: Indiana Supreme Court

87 N.E. 719

FLEMING et al.

v.GREENER et al.

No. 21,185.

Supreme Court of Indiana.

March 9, 1909.

Appeal from Circuit Court, Dubois County; E. A. Ely, Judge.

Action by Andrew Greener and others against Robert H. Fleming and others. From judgments for plaintiffs, defendants appealed to the Appellate Court, whence the cause was transferred to the Supreme Court. 83 N. E. 354. Reversed, and new trial granted.

M. W. Fields, Harvey Harmon, W. E. Cox, and R. W. Armstrong, for appellants. L. H. Fisher, Traylor & Traylor, and A. L. Gray, for appellees.

MONKS, J.

This appeal is from judgments rendered 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 “mechanic's lien law” of this state. Burns' Ann. St. 1908, §§ 8295-8307. 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 appellant 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 perform or furnish labor or furnish material, but only that the railroad, 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, payment, 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 its rights and interests in and to the unfinished part of his said contract to his surety and co-appellant, 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 said McDonald under his contract from 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 the railroad for their claims as provided by the statute, assigned said time checks by indorsement in writing to appellees Greener Bros. for a valuable consideration, who afterwards in their own name and in the name 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 name 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, and he employed hands to drive them; he driving one himself. Said McLaughlin paid his hands so employed by him out of his own pocket, and said McLaughlin, his hands, 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 the said railway companies' railroad, in said county” under the mechanic's lien law of this state.

The court below stated conclusions of law in favor of Greener Bros., 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 attorney's fees, on account of the same being a lien on the road of said railway companies under the law known as the “mechanic's lien law” of this state. Conclusions of law were stated in favor of said Greener Bros. 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 attorney's fees by virtue of what is known as the “mechanic's 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 attorney's fees against said railway companies, under the provisions of what is known as the “mechanic's lien law” of this state, and judgment was rendered against said railway companies therefor.

It was held by this court, in Indianapolis Northern Traction Company et al. v. Brennan et al. (this term) 87 N. E. 215: That the term “laborers,” as used in the title of the mechanic's lien act of 1883 (Acts 1883, p. 140, c. 115) and amendments thereto, being sections 8295-8307, Burns' Ann. St. 1908 (sections 7255-7267, Burns' Ann. St. 1901), “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 section 19, art. 4, 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 anyone except “mechanics, laborers, and materialmen” a lien is in violation of said section 19, art. 4, of the Constitution of this state, and therefore is void because not expressed in the title of the...