Ideal Basic Industries, Inc. v. Juniata Farmers Co-op. Ass'n, 42607

• Court: Supreme Court of Nebraska
• Citation: 289 N.W.2d 192,205 Neb. 611
• Docket Number: No. 42607,42607
• Parties: IDEAL BASIC INDUSTRIES, INC., a corporation, Appellant, v. JUNIATA FARMERS COOPERATIVE ASSOCIATION et al., Appellees.
• Decision Date: 26 February 1980

Page 192

289 N.W.2d 192 205 Neb. 611 IDEAL BASIC INDUSTRIES, INC., a corporation, Appellant,
v.
JUNIATA FARMERS COOPERATIVE ASSOCIATION et al., Appellees. No. 42607. Supreme Court of Nebraska. Feb. 26, 1980.

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Syllabus by the Court

1. Mechanic's Liens: Statutes. One who claims a mechanic's lien must clearly bring himself within the terms of a statute allowing a lien on real estate.

2. Mechanic's Liens: Statutes: Words and Phrases. A person who manufactures, purchases, or keeps for sale materials which enter into buildings, and who sells or furnishes such materials without performing any work or labor in installing or putting them in place is a materialman within the meaning of section 52-101 et seq., R.R.S.1943.

3. Mechanic's Liens: Statutes. Section 52-101 et seq., R.R.S.1943, do not extend the right to a lien on real estate to a supplier of a supplier of materials.

Lyle E. Strom and C. L. Robinson of Fitzgerald, Brown, Leahy, Strom, Schorr & Barmettler, Omaha, for appellant.

[205 Neb. 612] Charles W. Hastings of Dunmire & Blessing, Hastings, for appellees Mel Jarvis Constr. Co. and The American Ins. Co.

Heard before BOSLAUGH, McCOWN, CLINTON, and WHITE, JJ., and WOLF, District Judge.

WHITE, Justice.

This is an appeal by the plaintiff, Ideal Basic Industries, Inc. (hereafter Ideal), from an order dismissing an action to foreclose a mechanic's lien. The parties were Mel Jarvis Construction Company, Inc. (hereafter Jarvis), Larry Lambrecht, doing business as Wood River Concrete Company (hereafter Lambrecht), and The American Insurance Company (hereafter American).

The essential facts are these. Juniata Farmers Cooperative Association entered into a contract with Farmland Industries, Inc. (hereafter Farmland), for the construction of a grain elevator at Hayland, Nebraska. Farmland, as general contractor, agreed to furnish all labor and material for the construction of a concrete grain elevator. Farmland entered into a subcontract with Jarvis. Jarvis agreed to furnish all the labor and materials for the excavation, the lower pits, tunnels, slabs, and to slip form the concrete grain elevator and annex. Jarvis solicited bids for concrete for the elevator project. Lambrecht submitted a bid and Jarvis accepted by issuing a standard purchase order notifying Lambrecht. Between April and July 1976 Lambrecht supplied mixed concrete to Jarvis. All the cement necessary for making the concrete was purchased from Ideal, plaintiff in this action, on an open account.

Initially, the concrete supplied to Jarvis was mixed and transported from Lambrecht's batching plant in Wood River, Nebraska. Ideal delivered the raw cement to the plant at Wood River where Lambrecht would transport these raw materials in a [205 Neb. 613] mixing truck to the Hayland site. Approximately a month after Lambrecht started delivery of concrete to Jarvis, Lambrecht constructed a batching plant at the jobsite

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in Hayland. Ideal then delivered the cement to the Hayland batching plant. The cement involved in this case was delivered to the Hayland plant. Ideal does not seek recovery for any cement delivered to the Wood River plant.

Evidence was adduced to show Lambrecht supplied Jarvis with concrete from April 4, 1976, to July 1976. After two payments, a dispute arose and Jarvis stopped paying Lambrecht. Ideal contends it delivered $32,130 worth of cement to Lambrecht at the Hayland site for which it has not been paid.

On September 29, 1976, Ideal filed a mechanic's lien against Juniata Farmers Cooperative Association for $33,229.82, later amended to $32,130. In order to discharge the property from the lien, Jarvis, as principal, and American, as surety, filed a bond in the amount of $38,500 pursuant to section 52-121, R.R.S.1943. Ideal filed a petition against Juniata Farmers Cooperative, Lambrecht, Jarvis, and American in an attempt to foreclose its lien. Juniata demurred to the plaintiff's petition and the demurrer was sustained. Jarvis and American denied the allegations of plaintiff's petition. Lambrecht cross-petitioned against Juniata, Jarvis, and American, claiming a lien upon the bond filed by Jarvis for the balance due from Jarvis for the sum of $41,316.17. Upon its own motion, the court consolidated the case of Ideal Basic Industries, Inc. v. Juniata Farmers Cooperative Association et al., with that of Larry Lambrecht, doing business as Wood River Concrete Company v. Mel Jarvis Construction Company, Inc., et al. By pretrial order and pursuant to the stipulation of the parties, the court ordered that the case of "Ideal Basic Industries, Inc. vs. Mel Jarvis Construction Company, Inc." be tried first. It is that suit which is now before[205 Neb. 614] the court.

Ideal assigns as error the court's finding that Ideal was not entitled to the protection of the mechanic's lien statutes; that the failure of Lambrecht to tag or designate his payments to plaintiff on open account barred plaintiff from enforcing its mechanic's lien; and that the trial court erred in holding Ideal was required to prove the value of cement actually incorporated into the elevator and in failing...