Hoosier Bldg. Tile & Silo Co. v. Peet

• Decision Date: 25 March 1932
• Citation: 47 S.W.2d 1066,243 Ky. 290
• Parties: HOOSIER BLDG. TILE & SILO CO. v. PEET.
• Court: Kentucky Court of Appeals

47 S.W.2d 1066

243 Ky. 290

HOOSIER BLDG. TILE & SILO CO. v. PEET.

Court of Appeals of Kentucky

March 25, 1932

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Action by the Hoosier Building Tile & Silo Company against Harry Peet, Jr. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Lee S Jones and D. A. McCandless, both of Louisville, for appellant.

John K Skaggs, Jr., and F. M. Drake, both of Louisville, for appellee.

WILLIS J.

The Hoosier Building Tile & Silo Company instituted an action against Harry Peet, Jr., to enforce a statutory lien for materials furnished to a contractor, and used in constructing a building on Peet's property. The circuit court dismissed the action, resulting in this appeal.

The petition alleged that the plaintiff, or its authorized agent within 35 days after the last item of the material was furnished, gave notice of its intention to assert a lien on the property described and of the amount and nature of the claim. The answer of the defendant denied certain allegations of the petition, but did not deny the averments respecting notice. The case went to a commissioner, who heard the evidence and reported in favor of allowing the plaintiff's claim. It developed at the hearing that the notice had been mailed to a former address of Peet, but not to his last known address, and Peet testified that he did not receive the notice. An amended answer was filed on June 5 1930, denying the allegations of the petition respecting the notice, and raising some serious questions as to the sufficiency of the notice as to form, substance, and signature. Without taking further proof, the parties went to trial on the exceptions of the defendant to the report of the commissioner. The court sustained an exception on the sole ground that the notice required by the statute was not delivered to Peet or mailed to his last known address. A motion for a new trial was filed, and also an amended petition setting up a contract direct with the defendant. The court finally dismissed the action on both claims. It is now argued that the evidence was sufficient to show a contract with Peet, and that the circuit court abused a sound discretion in refusing permission to take further proof on the question of the statutory notice. It is likely that the amended petition constituted an abandonment of the original claim (Joseph Goldberger Iron Co. v. Cincinnati Iron & Steel Co., 153 Ky. 20, 154 S.W. 374; Arthur v. Campbell, 13 Ky. Law Rep. 734; Ramsey v. Utica Deposit Bank, 156 Ky. 263, 160 S.W. 943; Randolph's Adm'r v. Snyder, 139 Ky. 159, 129 S.W. 562; Symmes v. Rose (Ky.) 113 S.W. 97; Jennings v. Fain, 226 Ky. 290, 10 S.W.2d 1101; Tischendorf-Chreste Lumber Co. v. Hegan, 134 Ky. 1, 119 S.W. 163), but we have considered both contentions, as did the lower court, and will dispose of them on their merits.

1. Mr. and Mrs. Peet were contemplating the building of a home, and made a trip to appellants' factory at Carbon, Ind., for the purpose of selecting the tile to be used in the building. They selected a type of tile, and learned the price, but gave no order for it. Subsequently the contractor ordered the material desired, and it was charged to his account. A draft drawn on the contractor was dishonored, and the appellant proceeded to perfect a lien. The testimony fails to show a contract with Peet, but does establish one with the contractor. Indeed, the original action proceeded upon the theory that the material had been sold and delivered to the contractor, and, under the undisputed facts, that was clearly the correct theory. Phalin v. Standard Planing Mill & Building Co., 199 Ky. 495, 251 S.W. 635; Tischendorf-Chreste Lumber Co. v. Hegan, 134 Ky. 1, 119 S.W. 163.

2. It is conceded that the decision of the chancellor, upon the record, as made, was correct, but it is ably argued that it was an abuse of discretion not to permit the taking of additional evidence.

As already noted, no issue as to notice was raised by the original answer. The order of reference...