Appeal
from Circuit Court, Meade County.
WHITING
J.
This
case was tried to the court without a jury, and the court
having refused the findings and conclusions asked for by the
defendants, made and entered findings and conclusions
favorable to the plaintiff, and rendered its judgment based
thereon. The defendants moved for a new trial, and, this
motion having been denied, they have appealed to this court
from said judgment and order denying a new trial.
The
action is one wherein the plaintiff, claiming to have
constructed a dwelling house for the defendants, and having
filed a mechanc's lien against said house and land on
which same was situated, is seeking to enforce such
mechanic's lien, as well as recover a money judgment
against the defendants. The findings of the court are in
brief as follows: That the plaintiff and defendants on or
about October 15, 1906, entered into a building agreement for
the construction of the dwelling house in question on land
which was at that and all times since the property of the
defendant Della Grosshauser. That between October 18, 1906
and the early part of December, plaintiff, under his
agreement and with full knowledge and consent of both
defendants, performed necessary labor and furnished material
for the construction of said building of the actual and
reasonable value of $1,273.56. That defendant paid plaintiff
on account of said work and material $400, and no more. That
early in December, 1906, plaintiff discontinued work on
building, and thereafter defendants paid out on account of
materials furnished by plaintiff the further sum of $135.10.
That on January 22, 1907, plaintiff filed mechanic's
lien against land and building and expended $5.50 therefor.
That there remained as due plaintiff $726.90, with interest
at 7 per cent. from January 22, 1907. That, immediately after
the preliminary agreement between plaintiff and defendants
the plaintiff and Emil Grosshauser entered into a written
contract, the parts thereof material to this case being as
follows: Exhibit A: "Building Contract. This agreement
made and entered into this 18th day of October, 1906, by and
between H. E. Fritschel, of the county of Meade and state of
South Dakota, party of the first part, and Emil Grosshauser,
of the county of Meade and state of South Dakota, party of
the second part, witnesseth: That for and in consideration of
the sum of twelve hundred and twenty-five ($1,225) dollars,
to be paid as hereinafter specified, by the party of the
second part, the party of the first part hereby agrees to
furnish all material and labor, and construct a dwelling
house on the lots now owned by the party of the second part
in Sturgis, South Dakota. Said dwelling house to be
constructed according to and patterned after design No. 38 in
the Radford Ideal Homes plan book on page twenty-one (21),
with the exception hereinafter specified, and according to
the specifications hereinafter contained, to wit: *** Second
party agrees to pay for the labor, material and construction
of said dwelling house the sum of twelve hundred and
twenty-five ($1,225) dollars, to be deposited in the Meade
County Bank of Sturgis, South Dakota, by the said second
party upon the execution of this agreement, subject to the
check of said first party for labor and material, according
as the construction of said dwelling house progresses. Said
first party to furnish bonds in the sum of twelve hundred and
twenty-five ($1,225) dollars as security for the faithful
performance of this contract, said bonds to be exonerated
upon the acceptance of said dwelling house by second party.
It is further agreed that this contract does not include
wiring, plumbing or painting of said dwelling house. Executed
in duplicate by the parties hereto the day and year above
written. H. E. Fritschel. Emil Grosshauser. Witnessed by M.
R. Dobbins, Percy H. Helm." That Emil Grosshauser had no
interest in premises except as husband of Della Grosshauser,
and plaintiff did not know that Emil Grosshauser did not own
said property. That Emil Grosshauser never complied with any
of the terms of the written contract. That about October 30,
1906, Emil Grosshauser and plaintiff entered into a
supplementary contract in words and figures as follows:
Exhibit B: "Whereas Henry Fritschel of Sturgis City, S.
D., and Emil Grosshauser, of the same place, have heretofore
entered into a building contract whereby said Fritschel was
to erect a certain building for said Grosshauser, and
whereas, disputes have occurred between said parties as to
the time and terms of payments to be made by said
Grosshauser, and to settle said disputes: It is hereby agreed
by and between said parties that on the 30th day of November,
1906, or as soon thereafter as convenient, Henry Fruth, one
of the bondsmen for said Fritschel, on said building
contract, shall and will estimate the proportion of the work
done and material on hand by said Fritschel on and for said
building, and allow him therefor such sum as he thinks
proper, having in mind the amount of work to be done,
material furnished to complete the building, which said sum
said Grosshauser is to consent to, and endorse his consent
thereon and pay, and it is further agreed that hereafter as
the work on said building progresses the said Fritschel shall
demand of said Fruth a further estimate of the work done and
material on hand, and Fruth is to allow and pay the same out
of the money belonging to said Grosshauser in the Commercial
National Bank; and when the building is completed according
to the terms of said contract, said Fruth is to cause the
same to be paid out of the money of Grosshauser put in his
name for that purpose, at or before the execution of this
instrument, and said Henry Fruth is hereby authorized to make
payments from said money at any time he feels justified in
doing so, for the purchase of material. This agreement does
not...
