Gibson v. Koutsky-Brennan-Vana Co., 31574.

• Court: Supreme Court of Nebraska
• Citation: 9 N.W.2d 298,143 Neb. 326
• Docket Number: 31574.
• Parties: GIBSON et al. v. KOUTSKY-BRENNAN-VANA CO.
• Decision Date: 23 April 1943

9 N.W.2d 298

143 Neb. 326

GIBSON et al.
v.
KOUTSKY-BRENNAN-VANA CO.

No. 31574.

Supreme Court of Nebraska

April 23, 1943

[9 N.W.2d 299]

Syllabus by the Court.

1. Under our Code the chancery practice has been justly so enlarged that an answer in the nature of a cross-petition may properly seek affirmative relief beyond that which is merely defensive, and such relief sought need not necessarily be based on equitable grounds if germane to the original action.

2. A party may at any and all times invoke the language of his opponent's pleading, on which a case is being tried, on a particular issue, and in doing this he is neither required nor allowed to offer such pleading in evidence in the ordinary manner.

3. If a defendant desires an affirmative judgment against the plaintiff he should state in his answer the ultimate facts to support his contention. If he fails to allege an essential fact but it is pleaded by his adversary, an affirmative judgment in defendant's favor may be sustained by the pleadings.

4. Section 52-112, Comp.St.1929, is constitutional. It is a cumulative statute, remedial in nature, which permits the recovery of actual damages in a civil action, but limits the amount of such damages to one-half the amount of the claimed lien.

Crofoot, Fraser, Connolly & Stryker, of Omaha, for appellants.

J. J. Krajicek and S. L. Winters, both of Omaha, for appellee.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ. [9 N.W.2d 300]

CHAPPELL, Justice.

Plaintiffs brought this action in equity praying for an order discharging of record an alleged void mechanic's lien specifically waived by defendant in writing for a valuable consideration; the recovery of a money judgment for the refusal of defendant to release the lien after notice; and such other and further relief as may be just and equitable. Defendant [143 Neb. 327] answered denying plaintiff's right to recovery of a money judgment for damages and praying for an accounting of the amount due for material furnished plaintiffs by defendant; foreclosure of the lien; and for such other and further relief as may be just and equitable. Plaintiffs' reply, in addition to a general denial, alleged that, having kept the consideration for the waiver, defendant could not repudiate it.

The trial court entered decree finding, in substance, that defendant, for a consideration of $1,045.12, executed and delivered to plaintiffs a written waiver of its right to a mechanic's lien but notwithstanding thereafter filed a lien in the amount of $790.90; that the lien was void and a cloud on plaintiffs' title; ordered it released and discharged of record; and found that defendant, although given statutory notice, failed to release and discharge the mechanic's lien to plaintiffs' damage in the sum of $250. The court also made an accounting between the parties and found and adjudged that there remained due and owing from plaintiffs to defendant the sum of $790.90 for material furnished, and awarded defendant a personal judgment for $540.90, the difference between the damages suffered by plaintiffs and the amount due defendant, and ordered that each party pay his own costs.

Plaintiffs appeal from the judgment awarded defendant, and defendant cross-appeals from the allowance of damages to plaintiffs. No bill of exceptions was filed, therefore, this court will determine only whether the law and the pleadings sustain the judgment of the trial court. Wheeler v. Boiler, 129 Neb. 792, 263 N.W. 123; Luikart v. Heelan, 136 Neb. 492, 286 N.W. 780; Prokop v. Mlady, 136 Neb. 644, 287 N.W. 55.

Plaintiffs contend that, since they were not parties to their contractor's arrangements with defendant to furnish the material involved, it was error to award a personal judgment against them. The law does not support this contention. The rule is that, where the sufficiency of an answer to support a counterclaim is not questioned until after [143 Neb. 328] judgment, all reasonable intendments should be indulged in support of the pleading. Sheridan Coal Co. v. C. W. Hull Co., 87 Neb. 117, 127 N.W. 218, 138 Am.St.Rep. 435.

Plaintiffs' exhibit "A" (defendant's waiver of mechanic's lien), attached to and made a part of their petition, upon which they must rely for any recovery, both as the basis for discharging the lien of record and for the recovery of damages, states unequivocally that defendant was employed by plaintiffs and their contractor to furnish materials for the home erected upon plaintiffs' property.

In Carey v. Zabel, 112 Neb. 16, 198 N.W. 169, this court said: "A contract incorporated into a pleading as part of a cause of action or defense controls allegations which it contradicts," or, "which are inconsistent therewith," as in American Surety Co. v. School Dist., 117 Neb. 6, 219 N.W. 583. See, also, Carson v. City of Hastings, 81 Neb. 681, 116 N.W. 673; Shafer v. Wilsonville Elevator Co., 121 Neb. 280, 237 N.W. 155; Gibson v. Dawes County, 129 Neb. 706, 262 N.W. 671; Department of Banking v. Flotree, 135 Neb. 416, 281 N.W. 857.

A party may at any and all times invoke the language of his opponent's pleading, on which a case is being tried, on a particular issue, and in doing this he is neither required nor allowed to offer such pleading in evidence in the ordinary manner. Provident Savings & Loan Ass'n v. Booth, 138 Neb. 424, 293 N.W. 293. Statements, admissions and allegations in pleadings, upon which the case is tried, are always in...