Foster Lumber Co. v. Sigma Chi Chapter House of De Pauw Univ.

• Decision Date: 05 March 1912
• Docket Number: No. 7,478.,7,478.
• Citation: 97 N.E. 801,49 Ind.App. 528
• Parties: FOSTER LUMBER CO. et al. v. SIGMA CHI CHAPTER HOUSE OF DE PAUW UNIVERSITY.
• Court: Indiana Appellate Court

49 Ind.App. 528

97 N.E. 801

FOSTER LUMBER CO. et al.

v.SIGMA CHI CHAPTER HOUSE OF DE PAUW UNIVERSITY.

No. 7,478.

Appellate Court of Indiana, Division No. 2.

March 5, 1912.

Appeal from Circuit Court, Putnam County; John M. Rawley, Judge.

Action by the Sigma Chi Chapter House of De Pauw University against the Foster Lumber Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Thomas J. Sare, Miers & Corr, and W. A. Ketcham, for appellants. S. A. Hays and B. F. Corwin, for appellee.

ADAMS, J.

Appellee brought this action against the appellants and two other defendants to cancel liens of record, which defendants separately claimed to hold against the property of appellee, and to enjoin defendants from instituting any proceeding to foreclose their liens until the validity of the same should be determined in the pending action.

The following is a brief summary of the essential facts shown by the evidence and found by the court: The appellee, a college fraternity, on August 27, 1908, entered into a contract with the firm of Caldwell & Mobley to furnish all materials and perform all labor in the erection of a chapter house on real estate owned by the fraternity at Greencastle, Ind. The contractors partially completed their work; but in the latter part of December, 1908, abandoned the same. At that time, said contractors were indebted to a large number of parties on account of labor and material furnished to them in the construction of said building, amounting to about $8,000. Creditors of the contractors filed in the office of the recorder of Putnam county notices of their intention to hold liens upon said building for the amount of their several claims. After the abandonment of the work, appellee entered into an agreement with all parties claiming to hold liens against said property, except the defendants in this action, whereby appellee was granted an extension of time for payment of the claims held by such creditors. Appellee deniedthat the defendants in this action were entitled to hold liens, and brought this action to cancel the same.

The Foster Lumber Company agreed to furnish certain materials entering into the construction of said building for the sum of $954.30, and did furnish and deliver to the contractors at appellee's building, on or before October 3, 1908, all of the material so contracted for, which material was used in the construction of said building. The court does not find the fact, but it appears from the evidence, that a part of the material furnished by the Foster Lumber Company was used in the building after the 1st of December, 1908. On January 12, 1909, the appellant company filed notice of its intention to hold a lien upon appellee's property for the sum of $954.30.

Charles H. Springer undertook to furnish to said contractors all the stone used in the building, as required by the plans and specifications, for the sum of $600. Subsequently Springer contracted with the Hoadley Stone Company, wherein said company agreed to furnish the stone required in consideration of the payment by Springer of a definite lump sum. All the stone furnished by the said Hoadley Stone Company, and which went into the construction of the building, was received on or prior to November 27, 1908. A stone window sill was received December 9, 1908, but was furnished on account of an error of the contractors in checking up the original shipment, and was not used. The specifications called for two stone ornaments ten inches square, which were found to be improperly carved. On December 17th, a keg was received at the building, which remained unopened until after the abandonment of the work, and which was then found to contain the two stone ornaments, properly carved, but only eight inches square, and unfit for use, although made in conformity with a drawing submitted by the architects. On February 12, 1909, appellant Springer filed notice of his intention to hold a lien for the sum of $583 upon the property of appellee.

By the fourth conclusion of law, the court stated that the pretended lien of the appellant Foster Lumber Company was invalid, without right, and that said defendant was not entitled to have or hold a lien against the property of the appellee, and that the notice of, said appellant of its intention to hold a lien, as filed and recorded, should be canceled, set aside, and held for naught. By the fifth conclusion of law, the court stated the law to be the same as to the pretended lien of appellant Charles H. Springer. Appellants separately excepted to the fourth and fifth conclusions of law, and assign the same as error.

It is obvious that the determination of this cause involves only the determination of one underlying proposition, Did the appellants, at the time judgment was rendered below, have valid and enforceable liens against the property of appellee? If they had, then the court erred as to every specification of error in the assignment. If they had not, the judgment of the court was right, and the appellants were not harmed by the refusal of the court to permit them to file cross-complaints, or by any other action of the trial court.

[1] The right of a materialman to enforce a lien for the value of materials furnished by him is limited to cases where the following facts appear: The improvement must be made by the authority of the owner of the real estate, the material must be sold, not generally to the contractor, but for the purpose of being used in the construction of the particular building, the materials must be actually used in the construction of the building, and the notice of the intention of the materialman to hold a lien...