Kehoe v. Hansen

• Decision Date: 27 January 1896
• Citation: 65 N.W. 1075,8 S.D. 198
• Parties: KEHOE, Defendant and respondent, v. HANSEN et al., Plaintiff and appellant,
• Court: South Dakota Supreme Court

8 S.D. 198

65 N.W. 1075

KEHOE, Defendant and respondent,

v.

HANSEN et al., Plaintiff and appellant, South Dakota Supreme Court Appeal from Circuit Court, Edmunds County, SD Hon. Howard G. Fuller, Judge Reversed S. H. Cranmer Attorneys for appellant. C. H. Barron, Albert Gunderson Attorneys for respondents. Opinion filed Jan. 27, 1896

CORSON, P. J.

This was an action to enforce a lien under the mechanics’ lien law of this state. Judgment for defendants, and the plaintiff appeals. The cause of action is stated in the first paragraph of the complaint as follows:

“That on the first Monday of March, 1886, at said Edmunds county, said plaintiff made a certain contract with John Hansen, one of the defendants above named, by which plaintiff agreed to perform certain labor on and about the erection of certain buildings, structures or improvements, to wit: a certain dwelling house, barn, and granary, situated upon the following described land. … Said labor was to be performed by said plaintiff and his team, and by said contract the said defendant John Hansen agreed to pay to the said plaintiff therefor at the rate of three dollars per day for each day’s labor so performed by said plaintiff and his team.”

The usual allegations of tiling a verified account and claim for a lien were made, and in conclusion the plaintiff prays for judgment for the amount due, and that the same be adjudged to be a lien upon the property described, etc. The account filed and made a part of the complaint reads as follows: “To hauling lumber with team, 25 days, $75.00; to interest, $8.00; to drawing and filing lien, $5.00.” The allegations of the complaint, taken in connection with the account filed, show that the claim for a lien is based upon a contract for hauling the lumber for the buildings erected on the land described.

Upon the trial the defendants objected to any evidence under the complaint, on the ground that the same did not state facts sufficient to constitute a cause of action. This objection was sustained by the court, and all evidence excluded, and judgment rendered for the defendants- The specific ground of the objection was that the plain tiff could not enforce a lien for hauling lumber for the buildings, such a lien not being given by the terms of our lien law. The theory of the trial court in holding the complaint insufficient evidently was that a person hauling lumber for a building did not come within the terms of the statute, which provides “that every mechanic or other person who shall do any work upon, or furnish material,” etc., (Sec. 5469, Comp. Laws), is entitled to a lien upon such building, etc. This question has never been passed upon in this state, and is one of much importance. Ordinarily the contractor for the material delivers the same, and includes the expense of hauling in the price of the material. No objection, so far as we are aware,...