Judah v. F.H. Cheyne Elec. Co., No. 8,006.

• Docket Nº: No. 8,006.
• Citation: 101 N.E. 1039, 53 Ind.App. 476
• Case Date: May 29, 1913
• Court: Court of Appeals of Indiana

53 Ind.App. 476
101 N.E. 1039

JUDAH et al.
v.
F. H. CHEYNE ELECTRIC CO.

No. 8,006.

Appellate Court of Indiana, Division No. 1.

May 29, 1913.

Appeal from Superior Court, Marion County; Chas. J. Orbison, Judge.

Action by the F. H. Cheyne Electric Company against John M. Judah and others. Judgment for plaintiff, and defendants appeal. Affirmed.

[101 N.E. 1040]

Henry J. Brandon and Charles W. Appleman, both of Indianapolis, for appellants. Gideon W. Blain and Henry Warrum, both of Indianapolis, for appellee.

HOTTEL, P. J.

This was an action brought by appellee against appellants and the “unknown heirs, executors, administrators, personal representatives, legatees and devisees of Harriet Judah, deceased,” and other unknown heirs and persons whose names are unknown to foreclose a mechanic's lien. The complaint is in one paragraph, a demurrer to which was overruled. This ruling is the first error assigned.

[1] It is urged against the complaint that it fails to charge that the labor and materials sued for were “specially furnished” for the particular building against which the lien is asserted. The language of the act here involved, and the authorities construing it, and similar statutes, leave no doubt as to the correctness of appellant's contention that in actions of this character the plaintiff must show by the averments of his complaint and by his proof that the materials or labor for which he seeks a recovery were furnished for the particular building against which the lien is asserted. It is not enough to show merely that they were used in such building. Acts of 1909, p. 295, §§ 1, 2; City of Crawfordsville v. Brundage, 57 Ind. 262, 265;City of Crawfordsville v. Lee, 58 Ind. 597;City of Crawfordsville v. Straight, 58 Ind. 599;Hill v. Sloan, 59 Ind. 181, 187;Potter Mfg. Co. v. A. B. Meyer & Co., 171 Ind. 513, 519, 86 N. E. 837, 131 Am. St. Rep. 267. The lien in such cases is acquired by compliance with the statute, and is predicated on the assumption that credit is given on account of the building rather than to its owner. This assumption necessarily presupposes that the person who sells or furnishes the labor or material knows, when he furnishes it, that it is going into the particular building on which he is extending the credit and on which he expects to assert a lien. It follows that it is not enough to aver and prove merely that a contractor purchased such material or labor for such building and used it therein. Such averment indicates no knowledge on the part of the person furnishing such labor or material of the purpose, or the building, for which such material or labor was to be used, and hence no intent to sell on the credit of such building.

[2] The complaint here involved alleges that “on the 15th day of June, 1909, and more than a year prior thereto, said defendants were the owners of the following described real estate to wit. *** That said defendants are indebted to this plaintiff in the sum of $391.89 for work and labor done and materials furnished; said work, labor, and materials being done and furnished by said plaintiff to said defendants, at the special instance and request of the defendants, in the repair and construction of certain electrical work and electric wiring in and upon the brick building situated on the above-described real estate, on the said 15th day of June and thereafter.” These averments are easily distinguishable from those held insufficient in the cases relied on by appellant. They show that the material and labor for which the recovery is here asked was furnished at the instance and request of the owners themselves, and not to a contractor or subcontractor, as was done in some of the cases relied on by appellant, and in this complaint it is averred that such labor and materials were “ furnished by said plaintiff to said defendants *** in the repair and construction of certain electric wiring in and upon the brick buildings situated on the above-described real estate,” not that they were purchased for such buildings, as was the case in some of the decisions relied on by appellant. The averment that appellee “ furnished” such work and labor in the repair of the wiring in and upon the brick building, etc., necessitates the inference that such labor and material was not only used in and upon such building but that it was furnished for such building, and in our judgment completely

[101 N.E. 1041]

meets the requirement of sections 1 and 2 of the Acts of 1909, supra, and the decisions before cited.

[3] It has been many times held by the Supreme Court and this court that, where the facts averred in a pleading admit of but one inference, the court will indulge such inference in aid of the pleading, and under some of the more recent authorities a more liberal rule with reference to the indulging of inferences in favor of a pleading has been announced. Cleveland, etc., R. Co. v. Perkins, 171 Ind. 307-313, 86 N. E. 405, and authorities there cited; Holliday & Wyon Co. v. O'Donnell, 44 Ind. App. 647, 654, 90 N. E. 24;Antioch Coal Co. v. Rockey, 169 Ind. 247, 254, 255, 82 N. E. 76;Town of New Castle v. Grubbs, 171 Ind. 482, 86 N. E. 757;Agar v. State, 94 N. E. 819;Domestic Block Coal Co. v. De Armey (Sup.) 100 N. E. 675;Holliday & Wyon Co. v. O'Donnell, 101 N. E. 642, 644, and authorities there cited. The complaint in this case is sufficient under either rule and under all of the authorities cited.

[4] It is also urged against the complaint that it fails to affirmatively show that the labor and materials were furnished for the “ erection, alteration, repair, or removal of the building; that the averment that such labor and material were used in the repair and construction of certain electrical work and electric wiring should have been supplemented by an averment that the “electrical work and electrical” wiring were a part of such building. This objection is without merit. The equivalent of the averment contended for is found in the averment that such wiring was “in and upon the brick building,” etc.

At the request of the several defendants the trial court made a special finding of facts and stated its conclusion of law thereon. The correctness of such conclusions is presented by the errors assigned and relied on for reversal.

The court by its first finding found that appellee is a corporation engaged in the business of electrical contracting and engineering and selling electrical supplies.

Findings 2, 3, and 4 are in substance as follows:

(2) On May 23, 1884,...