Hahn v. Bonacum

• Decision Date: 08 June 1906
• Citation: 76 Neb. 837,107 N.W. 1001
• Parties: HAHN v. BONACUM, BISHOP, ET AL.
• Court: Nebraska Supreme Court

76 Neb. 837

107 N.W. 1001

HAHN

v.BONACUM, BISHOP, ET AL.

Supreme Court of Nebraska.

June 8, 1906.

Syllabus by the Court.

In an action to foreclose a mechanic's lien for labor performed on a building under a contract, relief will not be denied the plaintiff because of a trifling omission in the performance of a contract, where there has been a substantial performance on his part.

Evidence examined, and held to show a substantial performance on the part of the plaintiff, and sufficient to entitle him to the relief granted.

Evidence, as between the owner and a defendant lienholder, examined, and held sufficient to justify a finding in favor of the latter for a greater sum than that found by the trial court.

A mechanic's or materialman's lien, duly filed within the time required by law, takes precedence over a mortgage subsequently executed by the owner.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Lancaster County; Holmes, Judge.

Action by Charles P. Hahn against Thomas Bonacum, bishop of the Catholic diocese of Lincoln, and others. Judgment for plaintiff, and defendant Bonacum appeals. Remanded, with directions to modify decree.A. J. Sawyer, for appellant.

Billingsley & Greene, for appellee Hahn.

Kirkpatrick & Hager and Milton Schwind, for appellees Thym and Security Mut. Life Ins. Co.

ALBERT, C.

On the 9th day of May, 1902, Charles Hahn, plaintiff, entered into a contract in writing with the defendant, Rt. Rev. Bishop Bonacum, whereby it was agreed that the plaintiff should furnish the labor for the “brickwork” required in the erection of a certain building on premises belonging to the bishop, in consideration whereof the bishop was to pay the plaintiff $3,500. The bishop was to furnish the material. The work was to be performed to the satisfaction of the bishop, and to the satisfaction of the superintendent employed by him to supervise the work. Payments were to be made as the work progressed upon estimates made and signed by the superintendent; a certain percentage to be retained until the completion of the work. The contract also contains these provisions: “* * * The last payment not to become due until sixty days after completion of building, and the full payment and satisfaction of said contractor of all mechanics' liens or claims if any filed or made on said building on account of labor performed on account of said contractor. The aforementioned estimates to be furnished and signed by T. G. Kelly, Superintendent, Provided that before the last payment is made a certificate shall be obtained by the contractor from the clerk's office of Lancaster county signed by said clerk that he has carefully examined the records and finds no liens or claims recorded against said works or on account of said contractor. * * * Sixth. The party of the first part to have not less than ten brick layers employed on the work daily. * * * Ninth. Should the contractor fail to finish the work on or before the twelfth day of August, 1902, or within the ninety working days agreed upon, he shall pay or allow the proprietor by way of liquidated damages the sum of ten (10) dollars per diem for each and every day thereafter the said works shall remain incomplete. When any installment becomes due under the terms of this contract the proprietor shall be entitled to deduct from the amount thereof any sum or sums such proprietor may have paid any subcontractor, laborer or other person for work done for said building to be used in the performance of this contract at the request or with the knowledge of said contractor, and on the payment of the balance of such installment after making such deduction shall be discharged from the liability therefor.” On the 16th day of December, 1902, the plaintiff filed a mechanic's lien against the property in question, for labor furnished under the contract, including certain items of extra labor, which he claimed were furnished by him, but not included in the contract, claiming a lien on the property in the sum of $1,312. On the 20th day of April, 1903, he commenced this suit for a foreclosure of his said lien, bringing in Ernest C. Thym, another lienholder, and the Security Mutual Life Insurance Company, a mortgagee, as parties defendant. Thym filed a cross-petition, in which he also prayed the foreclosure of a lien against the same property for certain cut stone, which he had furnished to the bishop for the construction of the building. His claim is based on a written contract, whereby he agreed to furnish certain cut stone for a consideration of $700. His lien also covers the following items which he claims to have furnished, but which are not included in the contract: six stone caps of the value of $42.60; 150 feet of stone belt course of the value of $90; 1 stone platform in 3 pieces of the value of $16; changing caps to 9-inch bed of the value of $60. The material was furnished between the 1st day of April and the 21st day of October, 1902, the latter being the date the lien was filed. The insurance company also filed a cross-petition, praying that a certain mortgage executed to it by the bishop on the same property be established as a first lien on the premises. The mortgage was executed on the 22d day of October, 1902, and filed for record one day later. As to this mortgage, there is no contest, save as to the question of its priority.

As to the plaintiff's cause of action, the contest is between him and the bishop. One defense is that the plaintiff has never completed the work; another, that the suit was prematurely brought, in that the plaintiff had never obtained a certificate from the clerk of Lancaster county, showing that he (the clerk) had examined the records and found no liens against the property for work performed for the plaintiff by his workmen. Plaintiff's claim for extra work is denied. The bishop also filed several counterclaims against the plaintiff: (1) $2,400 liquidated damages for 240 days default after the 12th day of August, 1902, in the completion of the work under the contract; (2) $240 damages for plaintiff's failure to keep 10 men at work daily on the building; (3) $360 for pipes, tanks, barrels, an engine, etc., furnished to supply water for mixing the mortar; $500 damage for the wrongful filing of lien in question. Answering Thym's cross-petition, the bishop admits the contract, but denies that it was fully performed by Thym. He admits that certain “extras” were furnished by Thym, but denies that they were furnished in pursuance of any agreement between them, and puts in issue the reasonable value of the “extras” furnished. He also claims a payment of $100, for which he asks credit. He also pleads several counterclaims, or what are designated as counterclaims, consisting of alleged overcharges, damages for inferior material, and for failure to furnish certain items required by the terms of the contract, aggregating nearly $1,000. As between the plaintiff and the defendant (the bishop), the court found in favor of the plaintiff on all issues, save as to the extra labor, all claims therefor being disallowed. As between Thym and the bishop, the court found in favor of Thym on all the issues, save as to the extras, which were rejected. A decree was entered for the foreclosure of each lien, subject to the mortgage of the insurance company, which the court held was a first lien on the premises. The bishop appeals.

First, as to the controversy between the plaintiff and the bishop. Several pages of the latter's brief is devoted to an argument to justify the disallowance of the extras by the trial court. While the argument has not served to convince the plaintiff, it appears to have reconciled him to the decree, for he now expresses his willingness to abide by it; consequently...