Glass v. Freeburg

• Decision Date: 07 July 1892
• Citation: 50 Minn. 386
• Parties: JAMES E. GLASS <I>et al.</I> <I>vs.</I> OLAF A. FREEBURG <I>et al.</I>
• Court: Minnesota Supreme Court

50 Minn. 386

JAMES E. GLASS et al. vs. OLAF A. FREEBURG et al.

Supreme Court of Minnesota.

Argued by appellants, and submitted on brief by respondents, June 21, 1892.

Decided July 7, 1892.

Appeal by defendants, Charles K. Fulton, D. L. Libbey, and others, lien claimants, from the judgment of the District Court of Hennepin County, Pond, J., in the above-entitled action entered October 26, 1891.

The defendant Olaf A. Freeburg was on May 17, 1890, the owner of a lot in Highland Park Addition in the city of Minneapolis, and on that day entered into an oral contract with Nels A. Freeburg to build thereon for him a block of brick flats and other improvements. The plaintiffs, James E. Glass and Daniel H. McEwen, soon thereafter contracted orally with Nels A. Freeburg to furnish, and did furnish and deliver upon the lot certain lumber and other materials worth $809.17, to be used, and which were used, in the construction

of the building. Other persons furnished materials for and did work upon the building. On August 1, 1890, and while the construction was going on, Olaf A. Freeburg mortgaged the property to the Pioneer Savings and Loan Association for $8,000. The mortgage was recorded August 8, 1890. Some of the materials were purchased, and some of the work done under contracts made by Nels A. Freeburg with Fulton & Libbey and others a considerable time after this mortgage was made and recorded. The material men and mechanics afterwards filed liens on the property. This action was brought to foreclose these liens. The Freeburgs and the mortgagee and all the lien claimants were made parties. The trial court held the lien of Fulton & Libbey to be junior and subject to the mortgage, and they appealed.

Wilkinson & Traxler, for appellants.

G. D. Emery, for respondent Pioneer Savings & Loan Association.

MITCHELL, J.

Counsel for the respondent building association claims that the correct construction of the findings of the trial court is that Nels A. Freeburg was merely the agent of Olaf A. Freeburg, and as such contracted in the name and behalf of his principal for material and labor for the construction of the buildings referred to. We do not concur with this view. We think the findings are clearly to the effect that Olaf, as owner of the premises, contracted with Nels for the erection by the latter of the buildings, and that the latter, as principal and in his own behalf, purchased and contracted for the material and labor for the construction of the same, and that when the court described him as the "agent" (as well as the contractor) of Olaf, "with authority and power to contract for labor and material for the construction of the buildings," it had reference merely to the legal principle upon which it is held that a contractor has authority to charge the land of the owner with debts for labor and material incurred by him in performing his contract. See O'Neil v. St. Olaf's School, 26 Minn. 329, (4 N. W. Rep. 47;) Laird v. Moonan, 32 Minn. 358, (20 N. W. Rep. 354;) Meyer v. Berlandi, 39 Minn. 442, (40 N. W. Rep. 513;) Bardwell v. Mann, 46 Minn. 285, (48 N. W. Rep. 1120.) According to the findings we have, then, this state of facts: The owner of land made one entire contract with another for the erection thereon by the latter of certain buildings; that in the performance of his contract the contractor purchased from plaintiffs, and the plaintiffs furnished to him, certain material for the construction of such buildings on May 17, 1890, so that it must be taken as a fact that the actual work of the construction of the buildings was commenced as early as that date; that subsequently, and while the work was in progress, the owner of the premises executed a mortgage thereon to the respondent building association; that after this mortgage had been executed and recorded, and while the work was still in progress, the appellant, the Fulton &amp Libbey Company, furnished to the original contractor certain material for the construction...