George H. Rice & Co. v. Brown

Decision Date01 May 1895
Citation42 P. 396,1 Kan.App. 646
CourtKansas Court of Appeals
PartiesGEORGE H. RICE & Co. v. F. G. BROWN

Opinion Filed November 9, 1895.

MEMORANDUM.--Error from Reno district court; L. HOUK, judge. Action by George H. Rice and Alexander Clark, partners as George H. Rice & Co., against F. G. Brown and J. L. Moore to enforce a lien for materials furnished. Judgment for defendant Brown. Plaintiffs bring the case here. Reversed.

The statement of the case, as made by JOHNSON, P. J., is as follows.

In July, 1887, F. G. Brown was the owner of lots 9, 10, and 11 Avenue "A," in Hutchinson, Reno county, Kansas, and at that time entered into a written contract with J. L. Moore for the erection of a dwelling-house on said lots. By the terms of the contract, Moore was to receive, as compensation for furnishing material and completing the dwelling-house the sum of $ 3,300. Soon after the making of the contract between Moore and Brown for the erection of the house, in order to carry out his part of the contract, Moore entered into a subcontract with G. H. Rice and Alexander Clark, co-partners, doing business under the name and style of G. H. Rice & Co., lumber dealers, to furnish material for the construction of such house. Under this subcontract, G. H. Rice & Co. furnished material that was used in the erection of the house, amounting in the aggregate to $ 1,366. Moore soon after commenced the work of construction of the house, and continued the work upon the same until it was inclosed and plastering all done. In the early part of October he was taken sick, and the work of construction upon the house was thereafter continued by other parties until about the 9th day of December, 1887, when F. G. Brown took possession and moved into the house with his family, and has continued to occupy the same as the home of himself and family ever since. Moore has done no work upon the house or the grounds since the time Brown moved into it. On the 17th day of January, 1888, Rice & Co., as subcontractors, filed a statement with the clerk of the district court of Reno county, Kansas, of the amount due them from Moore, as contractor, for the materials furnished, and a description of the property upon which the materials furnished were to be used, and furnished a copy of such statement to F. G. Brown, the owner of the premises upon which such lien was so filed, and the clerk of the district court entered such statement in the mechanic's lien record under the proper designation. On January 18, 1888, Rice & Co. commenced an action in the district court of Reno county, Kansas, to foreclose their lien for the materials furnished to J. L. Moore, contractor, to be used in the construction of such dwelling-house. In December, 1888, such action was dismissed without prejudice, and this suit was commenced on the 11th day of January, 1889, to recover the sum of $ 1,366 from J. L. Moore, and for the foreclosure of the lien. Moore made no defense to the action, and the case was tried on the issues between G. H. Rice & Co., plaintiffs below, and F. G. Brown, defendant below. The case was tried by the court, with a jury to make advisory findings of fact. The jury made their findings, and the plaintiffs below requested the court to require the jury to return to their room and make additional findings, but the court discharged the jury and made the additional findings of the fact in writing, and filed them in this case.

"Special findings of fact by the jury:

"1. Did plaintiffs furnish lumber and other material to the contractor, J. L. Moore, under a contract and for the purpose of being used in the building of defendant's (Brown's) house on Avenue "A," east, in the city of Hutchinson? Ans. Yes.

"2. What was the amount and value of the material so furnished? A. $ 1,366.

"3. Was said material so furnished actually used in said house? A. Yes.

"4. When did defendant Brown move into the house? A. December 9, 1887.

"5. Did Brown, about the middle of December, 1887, settle up with the painters for the painting of the house? A. Yes.

"6. Did the defendant, Brown, about the 15th or 18th of December, 1887, tell the plaintiff, G. H. Rice, that his house was completed? A. No.

"7. Was said house substantially completed at that time? A. No.

"8. Did plaintiffs believe that the house was completed at that time? A. No.

"9. If plaintiffs did so believe, was it because defendant Brown had told Rice that it was completed? A. No.

"10. Did Brown finish the house in conformity to the plans and specifications, or did he alter, change and enlarge upon them? A. No; he changed them.

"11. How much did it cost to build said house? A. $ 3,589.86.

"12. What was the first price fixed by Moore for building the house according to original plans and specifications? A. $ 4,200.

"13. Was the first price asked by Moore agreed to, or was it reduced? A. It was reduced.

"14. And on account of such reduction and building for less money, were not certain things taken out of the plans and specifications? A. No.

"15. And were not the grading and plumbing so left out? A. No.

"16. Was the work done by Woodruff and Ainsley, the painters, in March, 1888, on front doors of Brown's house, a part of the work Moore contracted with Brown to do? A. No.

"17. How much money did Brown pay to Moore prior to February 19, 1888? A. $ 1,600.

"18. Did J. L. Moore ever complete the building of Doctor Brown? A. No.

"19. When was the last of the painting done on said building? A. March, 1888.

"20. Did J. L. Moore contract to do the painting? A. Yes.

"21. When was the last of the plumbing done on said building? A. March 12, 1888.

"22. When was the copy of the mechanic's lien statement served on Brown? A. January 17, 1888.

"23. When was the grading done and finished on said premises? A. About the last of March, 1888.

"24. What was the last painting done on said building? A. Front doors.

"25. What was the last of the plumbing done? A. Making connection with main.

"26. How much did Doctor Brown pay out for labor and material done on said building under the contract of Moore and Brown? A. $ 1,600.

"27. Did Moore pay out the $ 1,600 paid him by Doctor Brown to said contractors for labor and material put into said building? A. Yes."

Thereupon the plaintiffs moved the court to make further findings of fact therein; whereupon the court made answer to interrogatories as follows:

"Findings of fact by the court:

"1. What plumbing-work remained unfinished on December 19, 1887? A. The connection between the street main and the water-pipe at the curb line.

"2. Was there any work done included in Moore's contract with Brown on the premises in question between the 19th day of December, 1887, and the 8th of March, 1888? A. No.

"3. Was the work in question, excepting grading and plumbing from curb line, substantially completed in December, 1887? A. Yes.

"4. Does defendant Moore claim that all the work he contracted with Brown to do was completed in December, 1887? A. Yes.

"5. Was any of the material furnished by plaintiffs used in any of the work that was done on said premises subsequent to December, 1887? A. No.

L. HOUK, Judge."

Judgment reversed and case remanded.

F. F. Prigg, for plaintiffs in error.

Whiteside & Gleason, and Davidson & Williams, for defendant in error.

OPINION

JOHNSON, P. J.:

There is no dispute as to the facts found in this case; each party was satisfied with the facts found by the jury and the additional facts found by the court. It becomes a question of law as to whether the plaintiffs below were entitled to a lien upon the real estate for which they had furnished material as subcontractors to erect improvements thereon. Plaintiffs claim a lien on the premises under §§ 630 and 631, article 27, chapter 80, Compiled Laws of 1885:

"SEC. 630. Any mechanic or other person who shall, under contract with the owner of any tract or piece of land, his agent or trustee, or under contract with the husband or wife of such owner, perform labor or furnish material for erecting, altering or repairing any building or the appurtenances of any building, or any erection or improvement, or shall furnish or perform labor in putting up any fixtures or machinery in or attachment to any such building or improvement, . . . or shall perform labor or furnish material for erecting, altering or repairing any fence on any tract or piece of land, shall have a lien...

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3 cases
  • Bell v. Hernandez
    • United States
    • Kansas Supreme Court
    • April 7, 1934
    ... ... such rights, were unknown to the common law. Rice v ... Brown, 1 Kan. App. 646, 653, 42 P. 396; 18 R. C. L. 872; ... 40 C. J. 42. They are ... ...
  • Allison v. Schuler
    • United States
    • New Mexico Supreme Court
    • October 1, 1934
    ...by defendants in support of a view of substantial completion do not parallel the situation in the case at bar. In Rice et al. v. Brown, 1 Kan. App. 646, 42 P. 396, the court thought it significant that “both parties (the original contractor and the owner) seem to treat the house as complete......
  • Slatten v. Konrath
    • United States
    • Kansas Court of Appeals
    • May 1, 1895

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