J. B. Watkins & Company v. Kobiela

• Decision Date: 07 May 1909
• Docket Number: 15,673
• Citation: J. B. Watkins & Company v. Kobiela, 121 N.W. 448, 84 Neb. 422 (Neb. 1909)
• Parties: J. B. WATKINS & COMPANY, APPELLANT, v. FRANK KOBIELA ET AL., APPELLEES
• Court: Nebraska Supreme Court

121 N.W. 448

84 Neb. 422

J. B. WATKINS & COMPANY, APPELLANT, v. FRANK KOBIELA ET AL., APPELLEES

No. 15,673

Supreme Court of Nebraska

May 7, 1909

APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Reversed with directions.

Reversed and remanded, with directions.

William R. Patrick, for appellant.

A. H Murdock, contra.

OPINION

DEAN, J.

This is an appeal from Douglas county, wherein the plaintiff, in pursuance of chapter 54, Comp. St. 1907, sought to foreclose a mechanic's lien upon property owned by the defendants Joseph Vachal and Anna Vachal, his wife. The defendant Frank Kobiela is a contractor who purchased the building material from the plaintiff and erected the building upon the property in question for his codefendants.

The petition states, in substance, that the plaintiff in September, 1904, entered into a verbal contract with Kobiela, a contractor acting for his codefendants, to furnish lumber and building material for the erection of a store building for Joseph Vachal and Anna Vachal on property owned by them in Douglas county; that between September 22, 1904, and January 24, 1905, the plaintiff, in pursuance of the contract with Kobiela, furnished to the Vachals building material which was used in the erection of a store building upon the premises then owned by them; that on March 21, 1905, the plaintiff made and recorded an itemized account, duly verified, in the register of deeds' office of Douglas county, claiming a mechanic's lien on the premises for a balance due upon the material furnished in the sum of $ 356.91.

Joseph Vachal and his wife, Anna, filed a joint answer consisting of a general denial, but admitting the ownership of the property, and alleging they entered into a contract with their codefendant Kobiela for the erection of a building on the property in dispute, and that on January 11, 1905, they paid him the balance due on the contract. Kobiela filed no answer, but was defaulted, and a personal judgment was rendered against him for $ 390.23. The action was dismissed as to the Vachals, and from the judgment of dismissal plaintiff appeals.

The undisputed proof shows the last delivery of material upon the Vachals' premises by plaintiff prior to January 24 was on November 30, 1904, and that the verified and itemized statement of material furnished by plaintiff was filed for record March 21, 1905, so that the validity of the lien depends upon the delivery of material for the building on January 24, 1905. On the part of plaintiff, J. B. Watkins, one of the partners, testified that on January 24 Kobiela came in person to the plaintiff's place of business and ordered for use upon the Vachals' building 12 feet of sash sticking of less value than $ 1 and that plaintiff delivered it upon the premises of the Vachals the same day. Watkins' testimony is corroborated by W. H. Beckett, salesman and bookkeeper for plaintiff, who testified on cross-examination that, when Kobiela came to plaintiff's office and ordered the sash sticking on January 24, he told witness "that he could not settle with Mr. Vachal until he had made that sash and put it in." Beckett also testified that on the same occasion he saw the delivery ticket, which is attached to the record as an exhibit, taken by the plaintiff's teamster, Herman Williams, preparatory to the latter's departure for the Vachal premises to deliver the item in question, and that he saw the ticket the same day when it was returned to the office by the teamster as a receipt for the material, with the name of Joseph Vachal written thereon. Herman Williams, the teamster, testified that on January 24 he delivered the strip of sash sticking for plaintiff at the Vachal building, and that the delivery ticket was receipted in the name of Joseph Vachal by a woman, elsewhere shown to be Anna Vachal, who was in the store and in charge of the premises at the time. The testimony of Mrs. Vachal corroborates that of Williams in regard to the delivery of the sash sticking and the signing of the delivery ticket. Watkins' testimony is also corroborated by Kobiela, in regard to the item that was sold and delivered on January 24, by reference to exhibit 43, which is a bill made out by the plaintiff under date of March 1, 1905, and which contains a summary of a bill previously rendered and sundry items of material sold to Kobiela and delivered to the Vachals for use in the erection of their store building. Among the items enumerated in the bill is the following "1905. Jan. 24. T. 201 12 ft. sash sticking $ 30." At the bottom of this bill appears the following language: "Above account is correct. O. K. Frank Kobiela." Kobiela's attention was called to this exhibit, and he testified the signature was his own, and when asked, "Who made the 'O. K.' on there," he answered, "It looks like my writing." It is thus seen Watkins' testimony upon a vital point is substantiated by four witnesses, two of whom are defendants and both hostile to plaintiff.

The Vachals defend on the ground of bad faith existing between plaintiff and Kobiela in regard to the furnishing of sash sticking, and a considerable part of the record is appropriated by them to establish this defense. They undertake to show the lien is invalid because it was not recorded within 60 days after November 30, 1904. For this purpose they produce as their own witness their codefendant Kobiela, the contractor, who testified that himself and the plaintiff, by J. B. Watkins, entered into an agreement for the purpose of extending the time in which the itemized account for material furnished could be recorded by plaintiff so as to create a lien upon the Vachal property, and they attempt to prove that the sash sticking that was ordered by Kobiela on January 24, and delivered the same day on their premises by plaintiff, was so ordered and delivered for this purpose; but the record cannot be so construed, nor can this theory of the defense be maintained. Marriner v. Paxton, 17 Neb. 634, 24 N.W. 209; Foster v. Dohle, 17 Neb. 631, 24 N.W. 208; Irish v. Pheby, 28 Neb. 231, 44 N.W. 438. No reason existed on January 24 for an extension of the time for filing the itemized account. It is undisputed...