Keller v. Struck

• Decision Date: 24 January 1884
• Parties: Charles E. Keller and another v. Frederick Struck
• Court: Minnesota Supreme Court

18 N.W. 280

31 Minn. 446

Charles E. Keller and another v. Frederick Struck

Supreme Court of Minnesota

January 24, 1884

Appeal by plaintiffs from a judgment of the district court for Ramsey county, Brill, J., presiding.

Judgment affirmed.

Geo. J Flint, for appellants.

O'Brien & Wilson, for respondent.

OPINION

Dickinson, J.

The plaintiffs sought by this action to recover the value of lumber purchased from them, and used in the construction of a dwelling-house upon a lot owned by the defendant in the city of St. Paul, and to have the amount of the recovery declared a lien, and enforced as such. The answer of the defendant denied the purchase of the lumber by him, and set forth facts showing that the lot was his homestead at the time of the alleged sale. No reply having been interposed to the asserted right of homestead, the court granted judgment for defendant upon the pleadings. There being no reply putting in issue the allegations showing that the property was a homestead, the answer was to be construed as admitting the facts so pleaded. The property being a homestead, no lien in favor of the plaintiffs was created by the alleged sale and use of the lumber. Coleman v. Ballandi, 22 Minn. 144. The case cited controls that under consideration so far as relates to the question of the homestead right.

It is contended, however, that, upon the facts alleged in the complaint, the plaintiffs were entitled to recover, as in a legal action, the value of the lumber, and the question arises as to the sufficiency of the complaint for this purpose. The only allegations which can be claimed to charge the defendant with this personal liability are the following: "That * * * the plaintiff contracted with, and did agree to and with the defendant and one W. S Clark, and did thereafter furnish and deliver, for the use and benefit of said defendant, certain lumber and building materials to said defendant and the said Clark, for the purpose of building, and to be used in constructing, a dwelling-house upon the aforesaid lot. * * * That the said dwelling-house was so constructed by the said W. S. Clark, as contractor, workman, or agent for the said defendant, Frederick Struck, and for his sole use and benefit." Then follow allegations respecting the filing of the lien for the lumber, and showing the value of the same. The complaint contains these further averments: "That the balance remaining due and unpaid and...