Irish v. Pulliam

• Decision Date: 06 May 1891
• Citation: 48 N.W. 963,32 Neb. 24
• Parties: IRISH v. PULLIAM ET AL.
• Court: Nebraska Supreme Court

32 Neb. 24

48 N.W. 963

IRISH

v.PULLIAM ET AL.

Supreme Court of Nebraska.

May 6, 1891.

Syllabus by the Court.

In an action by a material-man to fore close a mechanic's lien, the owner of the property answered in substance that one P. & Co. were the lowest bidders for the erection of the buildings; that, they being unable to give bond, the material-man agreed with him that in consideration of furnishing certain material to P. & Co. for the erection of the building, he would waive his lien upon the same, etc. The testimony showed that a memorandum was made of the terms of the agreement, but that it was to be reduced to writing, and signed by the parties. Before the agreement was reduced to writing and signed the owner let the contract for the erection of the buildings to P. & Co. Held, that under the proof the contract was not to be complete until signed by the parties, and that the materialman was entitled to a lien.

Appeal from district court, Douglas county; WAKELEY, Judge.

Winfield S. Strawn, for appellant.

F. L. Weaver, for appellees.

MAXWELL, J.

This is an action to foreclose a mechanic's lien. Pulliam, Dickey & Co. entered into a contract with Allen H. Fitch to erect a dwelling-house for him and his wife, in the city of Omaha, for the sum of $7,244. The contractors could not, or at least did not, enter into a bond for the completion of the building according to the plans and specifications, and to pay the laborers and material-men. In lieu of this, however, the Fitches allege in their answer to the petition “that said Pulliam, Dickey & Co. were the lowest bidders therefor, bidding to do said work, according to the plans and specifications submitted, at a contract price of $7,244, but were unable to give bonds for the protection of these defendants against liens, and for the satisfactory completion of said work. Plaintiff thereupon, after looking over and inquiring into the plans, specifications, and contract price aforesaid, offered, promised, and agreed to furnish all the lumber necessary for the erection of said buildings according to said specifications and contract, and to waive his right of lien therefor, except as to such funds as might remain in the hands of these defendants, due and owing said Pulliam, Dickey & Co. after paying for the labor and the other material not to be furnished by plaintiff under his contract aforesaid, in consideration of and provided that the erection and construction of said buildings be given by these defendants to said Pulliam, Dickey & Co., which offer, promise, and agreement was accepted by defendants, and by them fully carried out and performed, and these defendants made no other or different contract in relation thereto with said parties. That they have paid out and expended the contract price of $7,244 for the furnishings and construction of the buildings aforesaid, and that because of the neglect, failure, and refusal of plaintiff to furnish the lumber according to his contract and agreement as hereinbefore mentioned, defendants, owing to the irresponsibility of said Pulliam, Dickey & Co., have been compelled to and did expend and pay out to their damage a further sum of $1,607.45 for the lumber necessary to complete said buildings according to the plans and specifications aforesaid.” This is denied in the reply. The testimony tends to show that the plaintiff, if the contract was let to Pulliam, Dickey & Co., proposed to furnish the lumber for the buildings, and waive his lien upon the buildings. A memorandum was drawn up by the plaintiff, Fitch, and Pulliam. This, however, merely contained what purported to be the terms of the agreement. It was not signed by either of the parties, but a formal agreement was to be drawn up and signed. Mr. Fitch, upon cross-examination,...