Gatchell v. Henderson

Decision Date27 June 1952
Docket NumberNo. 33161,33161
Citation156 Neb. 1,54 N.W.2d 227
PartiesGATCHELL et al. v. HENDERSON et al.
CourtNebraska Supreme Court

Syllabus by the Court.

1. Issues not presented in the trial court may not be raised for the first time in the Supreme Court.

2. Actions in equity, on appeal to this court, are triable de novo, subject, however, to the rule that when credible evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite.

3. Equity will devise a remedy to meet emergencies, and will adjust the property and financial interests of litigants whenever it can do so without prejudice to the legal or equitable rights of any person.

4. Where the court dealing in equity has money or property under its jurisdiction, it has the power to appropriately direct its application in order to carry out justice.

5. A subcontractor must file a sworn statement of the amount due him from the contractor within sixty days from the date of the last material furnished to or labor performed for the contractor in order to perfect a mechanic's lien under the provisions of section 52-102, R.S.1943.

6. Where more than sixty days intervene between two items of a lien account, there is a presumption that all items following the hiatus were furnished under a separate contract, and the time for filing a mechanic's lien cannot be extended by tacking one contract to another.

7. A subcontractor cannot extend the time for filing a mechanic's lien by substituting proper labor or material for defective labor or material previously furnished and charged to the contractor.

8. In the absence of an otherwise binding agreement, express or implied, there is no privity of contract between a subcontractor and the owner.

9. Where a mechanic's lien is invalid and there is no privity of contract between a subcontractor and the owner, such owner has a right as against the contractor to offset damages for breach of contract against any sum of money in his hands due and owing on his building contract with the contractor.

Morgan & Carnazzo, Omaha, for appellant.

Spier, Ellick & Spire, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

CHAPPELL, Justice.

Plaintiff, a subcontractor, brought this action against defendants Alvina Henderson and Carl M. Henderson, owners of Lots 65 and 66, Wyman Heights, an addition to the city of Omaha, and also against defendant Harry Z. West, the contractor who constructed a house thereon for them, seeking to recover a judgment against defendants and to foreclose a mechanic's lien for the reasonable value of electrical wiring, installations, and fixtures furnished the contractor by plaintiff, and to obtain general equitable relief.

Insofar as important here, the owners defended upon the ground that all contracts for material furnished or labor performed by plaintiff were wholly with their contractor and that plaintiff's purported mechanic's lien was invalid and unenforceable because not filed 'within sixty days from the performing of such labor or furnishing such material,' the time required by section 52-102, R.S.1943. The owners also timely filed a cross-petition against the codefendant contractor seeking to recover $260 as damages for alleged breach of contract by him. In that connection they alleged and testified that they had in their hands $322.19, the final balance still due and owing the contractor, and asked the trial court to make disposition thereof. They prayed that such damages aforesaid should be proportionately offset against such sum, and for general equitable relief.

Defendant contractor, although initially served with summons, defaulted both upon plaintiff's petition and defendant owners' answer and cross-petition. Further, defendant owners' right or manner of proceeding by cross-petition was never tested or raised in any manner by anyone in the trial court, either before or after decree was entered, but was raised by plaintiff for the first time in this court on appeal.

In that connection, there are two rules which preclude a decision thereon in this court. First: 'An issue not presented in the trial court may not be raised for the first time in the Supreme Court.' Freeman v. City of Neligh, 155 Neb. 651, 53 N.W.2d 67, 68. Second, as stated in 30 C.J.S., Equity, § 387, p. 804: 'An irregularity in a cross bill or in proceeding by cross bill, or as to the time at which a cross bill is filed, is waived by permitting the case to progress to hearing or decree without objection.'

A hearing was had whereat evidence was adduced upon the issues presented by plaintiff's petition and defendant owners' answer and cross-petition, and the trial court rendered a judgment which denied foreclosure of plaintiff's alleged mechanic's lien but awarded a judgment against defendant contractor in favor of the plaintiff for $563.95, the reasonable value of labor and material furnished to him by plaintiff, and awarded defendant owners a judgment against the codefendant contractor for $260 damages, as prayed in their cross-petition.

However, the judgment denied defendant owners the right to set-off such damages against the amount of $322.19 then admittedly owing by them to defendant contractor, but instead, upon a basis of purported equity and justice, ordered said sum forth-with paid to the clerk of the district court, all to be proportionately applied upon plaintiff's judgment against defendant contractor, and taxed all costs equally between plaintiff and such contractor.

True, as argued by plaintiff, no summons was issued on the cross-petition against the codefendant, but none was necessary since the pleadings herein were timely filed and decree was not taken until long after time to plead thereto had elapsed.

As stated in Farmers Mutual Ins. Co. v. Gumaer, 109 Neb. 832, 192 N.W. 941, 942: 'In Cockle Separator Mfg. Co. v. Clark, 23 Neb. 702, 37 N.W. 628, it was held that, when a defendant files [his] answer against his codefendant in the nature of a cross-petition, although no summons need be issued thereon, yet the codefendant is entitled to the same time to plead thereto as as though the defendant filing the answer was plaintiff and the codefendant sole defendant, and that a decree taken before the time to plead was erroneous.' By analogy, of course, a decree taken after the time to plead has elapsed, as in the case at bar, would not be erroneous.

Defendant owners timely filed a motion for new trial, assigning substantially that such part of the judgment relating to offset as appears in the last paragraph thereof aforesaid, was not sustained by the evidence but was contrary thereto and contrary to law. Such motion was overruled and they appealed, making like assignment here which we conclude should be sustained. On the other hand, plaintiff also timely filed a motion for new trial, assigning substantially that the judgment concluding that plaintiff was not entitled to foreclosure of a mechanic's lien was not sustained by the evidence and contrary to law. Such motion was overruled and plaintiff cross-appealed, making like assignment of error. We conclude that such assignment should not be sustained.

We turn first to plaintiff's cross-appeal to discuss and determine whether or not the trial court erred in concluding that plaintiff was not entitled to foreclosure of his mechanic's lien, because if the lien were valid then distribution of $322.19 in defendant owner's hands would concededly be immaterial to plaintiff. In doing so, we observe the rule that: 'Actions in equity, on appeal to this court, are triable de novo, subject, however, to the rule that when credible evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and thier manner of testifying, and must have accepted one version of the facts rather than the opposite.' Wiskocil v. Kliment, 155 Neb. 103, 50 N.W.2d 786, 787.

In that regard, the sole question which we are required to decide is whether or not the mechanic's lien of plaintiff concededly filed January 5, 1950, was filed within the time required by section 52-102, R.S.1943. In other words, was it filed 'within sixty days from the performing of such labor or furnishing such material * * * including * * * electrical apparatus and lighting fixtures * * *.' We conclude that it was not.

The respective agreements between plaintiff and the contractor and between the contractor and defendant owners do not require particular discussion. The mechanic's lien here involved recites that: 'the first item furnished and delivered was September ___, 1949, and the date of the last item was December 9, 1949.' As a matter of fact, both dates were concededly erroneous. Plaintiff admits that the first item was furnished on December 10, 1948, the next December 30, 1948, then March 4, 1949, then March 9, 1949, then August 31, 1949, then September 9, 1949, when the house was purportedly completed, on which date the switches, receptacles, and fixtures were installed by plaintiff in order to complete the job. On that date plaintiff rendered a statement or invoice dated '9/8/49' to 'Harry Z. West' the contractor, showing the balance due complete for job $563.95. Such sum was the exact amount subsequently claimed due in his purported mechanic's lien. Also, before the owners moved into the house on September 14, 1949, plaintiff told them that the contractor owed him $563.95. Concededly plaintiff made no charge for any item furnished after September 9, 1949, but claimed that on November 19, 1949, his employee son finished the doorbell wiring and checked to see that everything was...

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