Jackson v. J.A. Franklin & Son

• Decision Date: 17 October 1939
• Docket Number: 16224.
• Citation: 23 N.E.2d 23,107 Ind.App. 38
• Court: Indiana Appellate Court
• Parties: JACKSON et al. v. J. A. FRANKLIN & SON et al.

23 N.E.2d 23

107 Ind.App. 38

JACKSON et al. v. J. A. FRANKLIN & SON et al.

No. 16224.

Appellate Court of Indiana, in Banc.

October 17, 1939

John D. Wilson, of Winchester, and Kenneth C. Hinshaw, of Union City, for appellants.

Bowen & Mendenhall, of Winchester, and Ford & Brown, of Portland, for appellees.

DUDINE Judge.

This was an action by appellees against appellants to recover for lumber furnished by appellees and to be used in the construction of a barn upon appellants' premises and to foreclose an alleged materialman's lien securing the payment for said lumber.

The complaint was an ordinary form of complaint to foreclose a materialman's lien. Appellants filed an answer in general denial.

Before this cause was submitted for trial, appellants tendered the sum of $325 to the clerk of the court as an undertaking to pay any judgment rendered in this cause and filed a petition requesting the court to order the clerk to accept said money and hold the same in lieu of said alleged materialman's lien. The court having found that said sum was adequate to pay any judgment that might be rendered in the cause ordered that said money be held and retained by the clerk, and ordered further that upon completion of the cause, the clerk should apply said sum to the payment of any judgment that might be rendered against appellants in the cause. The court further ordered that said claimed materialman's lien be released.

The cause having been submitted to the court for trial, the court found for appellees that they should recover from appellants the sum of $226.20 for said lumber and the further sum of $50 for their attorneys' fees, and that appellees have a lien on said funds in the possession of the clerk.

The court rendered judgment in "the sum of $276.20" and ordered that the judgment be paid out of said funds, and that the balance thereof be refunded to appellants.

This is an appeal from said judgment. The sole error assigned upon appeal is contended error in overruling a motion for new trial filed by appellants.

The grounds for new trial properly assigned and discussed in appellants' brief are (1) the decision is contrary to law, (2) the decision is not sustained by sufficient evidence, and (3) error in the assessment of the amount of recovery in that the amount was too large.

The evidence shows that appellants owned the real estate in question. On August 22, 1936, appellant, G. Earl Jackson entered into a contract with Harry Wilson to build a barn on appellants' premises, said Wilson to furnish all labor material, and equipment. A few days later said Wilson entered into a contract with appellees to furnish certain lumber to be used in the construction of said barn and to be delivered to appellants' premises when called for by said Wilson. The foundation for said barn was completed in the fall of 1936. In February, 1937, Wilson became disabled and on account of his disability he could not thereafter construct or supervise the construction of the barn. On May 7, 1937 appellant, G. Earl Jackson, entered into a written agreement with said Wilson whereby Wilson was "to pay Earl Jackson the sum of one hundred dollars ($100.00) as damages for release from the labor portion of the original contract", it being provided in the agreement that Wilson was still obligated by the original contract to furnish all lumber and materials necessary to complete the barn. Appellees delivered the lumber in question to appellants' premises upon the order of Wilson. The last load was delivered on July 12, 1937. On the next day, July 13, 1937, appellees filed notice of their intention to claim a materialman's lien. Thereafter, appellant, G. Earl Jackson, in the presence of his wife, appellant, Virginia Jackson, discussed with appellee, Chester H. Franklin, the matter of paying for the lumber and told appellee, Chester Franklin that they (appellants) did not intend to pay for the lumber, but told him not to remove any of it from their premises. In December, 1937, appellants sold and conveyed the farm. The barn was never completed and the lumber furnished by appellees was not used but remained in the same form it was in when delivered.

Appellants contend that the decision is contrary to law because the evidence conclusively shows that the lumber was not used in the construction of an improvement upon the farm.

"The general rule is that, in order to acquire a lien under our statute, it is necessary for the material man to show that the improvement was made by the authority of the owner of the real estate, and that he furnished the material for the building, and that such material was used in the building, and that, within the time prescribed by the statute, he filed in the office of the recorder of the county the proper notice of his intentions to hold such lien. Clark v. Huey , 40 N.E. 152." Barnett v. Stevens, 1896, 16 Ind.App. 420, 430, 43 N.E. 661, 664, 45 N.E. 485.

"The mechanic's lien statute (Burns' Ann.St.1914, § 8295 et seq.) rests on the principle that one who furnishes labor or material for the improvement of property is entitled to look to that property for his compensation, and 'a materialman claiming a lien must ordinarily show that his materials were furnished for and were actually used in the erection, alteration or repair of the building against which the lien is asserted."' Moore & Richter Lumber Company v. Scheid, 1918, 68 Ind.App. 694, 121 N.E. 91, 92.

It is not always necessary to show that the material went into the building. Circumstances in a given case may be such that the owner of the building is estopped from invoking the general rule. See Moore & Richter Lumber Company v. Scheid, supra and cases therein cited.

In Scott et al. v. Goldinghorst, 1890, 123 Ind. 268, 24 N.E. 333, 334, it was contended in effect that a mechanic's lien is not established until the building is completed, or where the owner abandons the construction of the building after laying the foundation. In that case the work for which the lien was claimed was done upon the foundation. Our Supreme Court said with reference to said contention:

"We are not impressed with this view of the subject. * * * It does not appear upon the complaint whether the barn was completed or not, but, if it were conceded that it was not it would not follow that the laborers and material-men who built the foundation would be thereby deprived of the right to acquire a statutory lien for their labor and material. * * * Laborers and material-men who are employed to do work or furnish material, with the purpose of the employer, then formed, to continue the work to the completion of a building for which the foundation is thus being prepared, are entitled to acquire a lien under the statute. Phil. Mech. Liens, § 154.

"If the work

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