Halstead v. Olney J. Dean & Co.

• Decision Date: 01 July 1914
• Docket Number: 22,514
• Citation: 105 N.E. 903,182 Ind. 446
• Parties: Halstead et al. v. Olney J. Dean & Company
• Court: Indiana Supreme Court

105 N.E. 903

182 Ind. 446

Halstead et al. v. Olney J. Dean & Company

No. 22,514

Supreme Court of Indiana

July 1, 1914

Rehearing Denied November 17, 1914.

From Superior Court of Marion County (87,902); Charles J. Orbison Judge.

Action by Olney J. Dean & Company against William C. Halstead and others. From a judgment for plaintiff, the defendants appeal.

Affirmed.

Charles B. Clarke, Walter C. Clarke, Caleb S. Denny and George S Denny, for appellants.

Charles O. Roemler and Harry O. Chamberlain, for appellee.

OPINION

Spencer, J.

The nature of this action will best appear from a statement, in substance, of appellee's fourth paragraph of complaint. It is there charged that on February 15, 1912, appellant, Cole Motor Car Company, was the owner of certain described real estate in the city of Indianapolis; that on or about said date said company entered into a written contract with appellants, William C. Halstead and DeWitte V. Moore, whereby the last named appellants undertook and agreed to furnish all materials and perform the labor in the construction of a factory building for appellant, Cole Motor Car Company, on its described real estate; that in pursuance of said contract and in the construction and erection of said factory building appellants, Halstead and Moore, purchased of appellee large quantities of materials, which materials were furnished for and used in the erection of said factory building; that on said date appellants, Halstead and Moore, were indebted to appellee for said materials in the sum of $ 1,979.18, which indebtedness was evidenced by two certain promissory notes, copies of which are attached as exhibits, and by an open account in the sum of $ 100; that on June 3, 1912, appellee duly served appellant, Cole Motor Car Company, as owner of said factory building, with notice in writing, setting forth the amount of its claim and alleging the use in said building of the materials furnished; that on said date appellant, Cole Motor Car Company, was indebted to appellants, Halstead and Moore, in a large sum of money. Foreclosure of appellee's lien on said sum of money is then asked.

The first and second paragraphs of complaint are ordinary counts on the respective promissory notes above referred to, and as to them the Cole Motor Car Company is not a party defendant. The third paragraph of complaint was dismissed before the trial and the demurrers of the several defendants to the remaining paragraphs were overruled.

The appellants, other than the Cole Motor Car Company, then filed a cross-complaint against appellee in which they alleged that "the notes and account sued upon in each paragraph of complaint were given and incurred by defendants for certain building material furnished by plaintiffs, as set out in the exhibits attached to and forming a part of this complaint and for certain engineering plans, drawings and specifications prepared, submitted and furnished by plaintiffs in their professional capacity as reinforced concrete engineers to those defendants and used by them as general building contractors in the erection and construction of a factory building for the Cole Motor Car Company, in the city of Indianapolis, Marion County, Indiana. That plaintiffs represented to these defendants as inducement to the purchase of such building material and the use thereof in the erection and construction of such factory building, that the work these defendants had contracted and obligated themselves to perform on such building, could be well and properly performed by the use of such material so offered for sale by plaintiffs, and that the same, when installed in such building, would be in strict compliance with the plans and specifications therefor and would be in all respects suitable, durable and substantial, and would withstand any strain placed upon the same when in place in such building. That prior to the purchase of such building material by defendants from the plaintiffs, and as a prerequisite to such purchase, these defendants required of plaintiffs, and the plaintiffs then and there agreed to furnish and provide drawings, plans and specifications for the said building, and for the use of such material thereon, to the approval of the architect on said building, and said plaintiffs did provide and furnish such drawings, plans and specifications to the approval of such architect; that the original plans, drawings and specifications upon which these defendants obtained the contract for the erection and construction of such building were modified to conform to the plans, drawings and specifications provided and furnished by plaintiffs, and these defendants thereafter followed the plans, drawings and specifications provided and furnished by plaintiffs, and such building was constructed in accordance therewith, and in such work the material for which the notes sued on in plaintiff's complaint was used. That the defendants relied upon the skill and reputation of plaintiffs as reinforced concrete engineers in the use of such material so procured by plaintiffs, and these defendants also relied upon the representations of plaintiffs, made prior to the sale of such material, that such material would be in all respects suitable, durable and substantial, and would withstand any strain placed upon the same when in place in such building; that the defendants would not have purchased such material from the plaintiffs if such representations as above set out had not been made. That the material so furnished by plaintiffs was weak and wholly unsuitable for the purpose for...