John Paul Lumber Company v. Hormel
| Decision Date | 07 June 1895 |
| Docket Number | 9440--(152) |
| Citation | 63 N.W. 718,61 Minn. 303 |
| Parties | JOHN PAUL LUMBER COMPANY v. GEORGE A. HORMEL |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Mower county, Whytock, J., denying a motion for a new trial. Affirmed.
Order affirmed.
S. D Catherwood, for appellant.
French & Wright, for respondent.
Action to foreclose a material man's lien. Plaintiff corporation was engaged in selling building material, while defendant was in the pork-packing business, his establishment being on the land described in the complaint. He was also one of a firm conducting a retail meat shop in a different part of the city. He contracted with one Hunkins to build another packing house on the land first mentioned, the latter to furnish all material and to do all of the work for a stipulated sum of money.
Hunkins ordered the necessary lumber, valued at about $ 800, from plaintiff, and it was delivered as called for; some of it to the contractor, some to defendant's servants, but the greater part to a drayman who did the hauling. When the contract was completed, Hunkins kept on at work by the day repairing and constructing other buildings for plaintiff on the same premises, procuring material from plaintiff as needed, the value of such material being about $ 275. All of the material heretofore mentioned was obtained between September 23, 1892, and January 31, 1893. November 1, 1892 Hunkins paid to plaintiff, using defendant's check, the sum of $ 800. On March 1 and 2, 1893, one of defendant's servants went to plaintiff's place of business, and bought for the former material of the value of $ 5.75. This was intended for use, and was actually used, at the retail meat shop, and Hunkins had nothing to do with it. All of the material was charged upon plaintiff's books of account to the defendant, and this action was brought to recover from the latter the balance of the entire bill over and above the sum paid by Hunkins, and to enforce a lien for the same on the premises on which Hunkins performed his contract.
The trial court found as a fact that when plaintiff's agent sold and delivered the bill of goods March 1 and 2, he believed, and from all the facts and circumstances in connection with such sale and delivery had a right to believe, that the same were to be used for the purpose of constructing and repairing buildings on the same premises on which the material theretofore sold and delivered had been used; that credit therefor was given in such belief; that it was all suitable for such purpose, and that the agent had no knowledge that it was to go elsewhere.
The relevancy and importance of this finding is manifest when we say that plaintiff's lien statement, which embraced all items from September 23 to March 2, and described only the land first mentioned, was not filed until May 27, or 116 days after the sale of January 31. If the sale and delivery made in March could not be held to justify a lien on that tract of land, although the material was not used there, plaintiff's lien statement was filed nearly one month too late.
The appellant's counsel insists that this finding was not supported by the evidence, but we cannot...
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