Hormuth Drywall & Painting Service, Inc. v. Erectioneers, Inc., 1-278A53

• Decision Date: 17 October 1978
• Docket Number: No. 1-278A53,1-278A53
• Parties: HORMUTH DRYWALL & PAINTING SERVICE, INC., Plaintiff-Appellant, v. ERECTIONEERS, INC., Niehaus Industrial Sales Company, Bucyrus-Erie Company, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 490

381 N.E.2d 490

178 Ind.App. 16

HORMUTH DRYWALL & PAINTING SERVICE, INC., Plaintiff-Appellant, v. ERECTIONEERS, INC., Niehaus Industrial Sales Company, Bucyrus-Erie Company, Defendants-Appellees.

No. 1-278A53.

Court of Appeals of Indiana, First District.

Oct. 17, 1978.

John L. Carroll, Johnson, Carroll & Griffith, Evansville, for plaintiff-appellant.

John D. Clouse, William D. Stephens, George A. Porch, Bamberger, Foreman, Oswald & Hahn, Evansville, for defendants-appellees.

LOWDERMILK, Judge.

STATEMENT OF THE CASE

Plaintiff-appellant Hormuth Drywall & Painting Service, Inc. (Hormuth) appeals after the Vanderburgh Superior Court granted judgment on the evidence in favor of defendants-appellees Niehaus Industrial Sales Company (Niehaus) and Bucyrus-Erie Company (Bucyrus).

We affirm.

FACTS

Bucyrus owned a factory building and contracted with Niehaus for certain improvements to be made to the building. Niehaus subcontracted to Erectioneers, Inc. Erectioneers subcontracted to Hormuth.

The president of Hormuth had numerous conversations with representatives of Bucyrus and Niehaus after Hormuth's attempts to collect payments from Erectioneers proved unsuccessful. During those conversations, representatives of Bucyrus and Niehaus agreed to make efforts to help Hormuth collect the sums due Hormuth from Erectioneers. Hormuth subsequently filed a lawsuit, taking a default judgment against Erectioneers but suffering an adverse judgment on the evidence at the close of Hormuth's presentation of evidence.

ISSUES

1. Was there any evidence or legitimate inference therefrom tending to support recovery by Hormuth on the basis of an oral contract allegedly existing between Hormuth and Niehaus and between Hormuth and Bucyrus?

2. Was there any evidence or legitimate inference therefrom tending to support recovery by Hormuth on the basis of Hormuth's status as a third-party beneficiary to contracts existing between Niehaus and Bucyrus, and Niehaus and Erectioneers?

Issue One

Hormuth summarizes its first argument as follows:

"There was sufficient evidence to show that Hormuth and the Owner and the A contract must be supported by consideration. Urbanational Developers, Inc. v. Shamrock Engineering, Inc. (1978), Ind.App., 372 N.E.2d 742. Judge Buchanan explained in Spickelmier Industries, Inc. v. Passander (1977), Ind.App., 359 N.E.2d 563, 564: "Not every promise creates a legal obligation which the law will enforce. A promise must be predicated upon adequate consideration before it can command performance."

General Contractor entered into an oral contract that they would assist Hormuth in receiving its money which Erectioneers owed if Hormuth would refrain from filing a lien on the real estate. This clearly establishes an oral contract and there was sufficient evidence for the jury to find that neither the Owner or the General Contractor completed its part of the Contract to the detriment of Hormuth."

Hormuth presented evidence that Bucyrus and Niehaus firmly believed that a valid no-lien contract prevented Hormuth from filing an effective lien. Mr. Hormuth's testimony reveals that, after talking with representatives of Bucyrus and Niehaus, he believed that a valid no-lien contract prevented Hormuth from filing an effective lien. ¹ Furthermore, Mr. Hormuth testified that he did not promise he would not file a lien. This evidence leads to the inescapable conclusion that any promises which may have been made by representatives of Niehaus and Bucyrus to the effect that they would attempt to help Hormuth recover payments due from Erectioneers amounted to promises unsupported by consideration. At the time representatives of Niehaus and Bucyrus allegedly made the promises to help Hormuth collect its money, Niehaus and Bucyrus were confident that Hormuth could not file an effective lien and insofar as Niehaus and Bucyrus were concerned, no benefit was passing to them and no detriment was being imposed upon Hormuth. No contractual obligation was intended, and none resulted. Hormuth proved these matters with its own evidence. No contrary inference is possible.

ISSUE TWO

For its second argument Hormuth contends that a jury could have determined that the contracts between Bucyrus and Niehaus and between Niehaus and Erectioneers included certain provisions which inured to the benefit of Hormuth. Bucyrus failed to demand lien waivers from Niehaus and Niehaus failed to demand lien waivers from...