Hoagland v. Lusk

• Decision Date: 05 November 1891
• Citation: 33 Neb. 376,50 N.W. 162
• Parties: HOAGLAND v. LUSK ET AL.
• Court: Nebraska Supreme Court

33 Neb. 376

50 N.W. 162

HOAGLAND

v.LUSK ET AL.

Supreme Court of Nebraska.

Nov. 5, 1891.

Syllabus by the Court.

1. A partnership composed of three persons erected a building upon a lot owned by two of the partners. The partners, holding the legal title of the lot, contracted in the name of the firm for the materials used in the construction of the building. In an action by the material-man to foreclose his lien, it was held that the lien attached to the lot and building thereon.

2. A mechanic's lien is not lost nor waived by the taking of the note of the debtor for the balance due on their account, nor in such case by giving to the latter a receipt as in full for the demand.

3. The acceptance by a material-man of a note and chattel mortgage as collateral security for materials previously furnished for the erection of a building under a contract with the owner is not a waiver of the lien of the material-man, unless such was the intention of the parties.

Appeal from district court, Saline county; MORRIS, Judge.

Suit by George A. Hoagland against Lusk Bros. & Co. and others to foreclose a mechanic's lien. Decree for plaintiff. Defendant Henry S. Ferguson appeals. Affirmed.

Hastings & McGintie, for appellant.

Dawes & Foss and Palmer & Hendee, for appellee.

NORVAL, J.

This suit was brought in the court below by the appellee to foreclose a mechanic's lien. Cross-petitions were filed by E. I. Ferguson and the Combination Gas-Machine Company. A decree of foreclosure was entered, which gave E. I. Ferguson a first lien for the sum of $2,566.87, and the plaintiff a second lien for the sum of $363.64. The cross-petition of the Combination Gas-Machine Company was dismissed. The defendant Henry S. Ferguson appeals from so much of the decree as allowed to plaintiff a mechanic's lien. The appellant insists that the plaintiff was not entitled to a mechanic's lien because the materials were not furnished under any contract with the owner of the premises. The materials were sold by the plaintiff to Lusk Bros. & Co. for the construction of a brick building upon lot 146 in the town of Friend. The firm consisted of Abner P. Lusk, William S. Lusk, and Joseph G. Boynton. At the time the materials were sold and delivered the Lusks were the owners of the lot. The ma erials were furnished and the building erected with the knowledge and consent of the owners of the legal title of the lot. In fact, the undisputed evidence is that the Lusks personally contracted for the materials on behalf of the firm. This was sufficient to subject their interest in the property to the operation of the mechanic's lien. Did the appellee, prior to the purchase of the premises by the appellant, release all right and claim to a lien? On October 30, 1887, the defendant E. I. Ferguson loaned to Abner P. and William S. Lusk $2,250 on 60 days' time, and, as security for the payment of the same, took a mortgage on the lot. At that time the building was nearly completed, and plaintiff was entitled to file a lien in the sum of $680.32, the same being the balance due for materials furnished, but had not yet done so. Ferguson refused to pay out the money on the loan with the plaintiff's right to a first lien still existing. After some negotiations, the plaintiff finally agreed that on the payment of $250.32, and on Lusk Bros. & Co. giving their note for $430, he would accept the same, and release his right to claim a lien prior to the mortgage. The money was paid over out of the proceeds of the loan, and the note was executed and delivered on November 2d. The plaintiff gave a receipt in full of the account, and relinquished all right of lien on the property. This receipt was delivered to Ferguson at the time he paid the money to B. F. Rengler, the manager of plaintiff's business at Friend, who executed the receipt on behalf of the plaintiff. The receipt being either lost or misplaced, it could not be produced on the trial....