Halstead v. Stahl

• Citation: 94 N.E. 1056,47 Ind.App. 600
• Decision Date: 16 May 1911
• Docket Number: 6,987
• Parties: HALSTEAD v. STAHL
• Court: Court of Appeals of Indiana

94 N.E. 1056

47 Ind.App. 600

HALSTEAD v. STAHL

No. 6,987

Court of Appeals of Indiana

May 16, 1911

From Newton Circuit Court; Charles W. Hanley, Judge.

Suit by Edwin W. Stahl against Everett Halstead. From a judgment and decree for plaintiff, defendant appeals.

Judgment affirmed. Decree reversed.

George A. Williams, for appellant.

Frank Foltz and Charles G. Spitler, for appellee.

OPINION

FELT, J.

This suit was brought by appellee upon an alleged oral contract to furnish the material for and to drill and construct a well upon the real estate of appellant, and for foreclosure of a mechanic's lien. The court found for appellee for $ 142.45 and $ 25 attorneys' fees, rendered a personal judgment against appellant for $ 167.45, and also entered a decree for foreclosure of the lien against appellant's real estate. From this judgment and decree appellant appeals and has assigned as error the insufficiency of the first paragraph of complaint and the overruling of appellant's demurrer thereto, also the overruling of the motion for a new trial, which alleged that the finding and judgment of the court were contrary to law.

A contractor is a person who, in pursuit of an independent business, undertakes to do specific jobs of work for other persons, without submitting himself to their control with respect to all petty details of the work. 2 Words and Phrases 1534, 1535; Shearman & Redfield, Negligence (3d ed.) §§ 76, 77; Carey-Lombard Lumber Co. v Jones (1900), 187 Ill. 203, 58 N.E. 347.

Appellee comes within this definition and, suing as a contractor, is not entitled to a mechanic's lien, as the Supreme Court of this State has held that the title of the act under which the mechanics' lien laws were enacted by virtue of which his lien is asserted, does not include contractors and sub-contractors. Indianapolis, etc., Traction Co. v. Brennan (1910), 174 Ind. 1, 87 N.E. 215; Cleveland, etc., R. Co. v. DeFrees (1909), 173 Ind. 717, 87 N.E. 722; Fleming v. Greener (1909), 173 Ind. 260, 90 N.E. 73; Korbly v. Loomis (1909), 172 Ind. 352, 88 N.E. 698.

Notwithstanding the complaint is insufficient to warrant the foreclosure of the lien, it states a cause of action on the oral contract sufficient to warrant a personal judgment against appellant. A complaint which entitles the complainant to any relief is good as against a demurrer. Appellant has not brought the evidence to this court on appeal. The...