Kendall Lumber & Coal Co. v. Roman, 17998

• Decision Date: 31 March 1950
• Docket Number: No. 17998,17998
• Parties: KENDALL LUMBER & COAL CO., Inc. v. ROMAN et al.
• Court: Indiana Appellate Court

Page 187

91 N.E.2d 187

120 Ind.App. 368

KENDALL LUMBER & COAL CO., Inc. v. ROMAN et al.

No. 17998.

Appellate Court of Indiana, in Banc.

March 31, 1950.

Porter D. Crowell, Kendallville, for appellant.

Mountz & Mountz, Garrett, Ralph W. Probst, Kendallville, for appellees.

ROYSE, Judge.

Appellant brought this action against the appellees and one Frank Wyatt to foreclose a mechanic's lien. Prior to trial the action as to said Wyatt was dismissed.

The facts as disclosed by the record may be summarized as follows: The appellee Temple (hereinafter designated as the owner) is the owner of certain real estate in Noble County. The appellee Roman (hereinafter designated as the purchaser) had entered into a written contract to purchase said real estate. On or about the 21st day of July, 1948 the purchaser entered into a written contract with the aforementioned Wyatt for certain repairs to the building located on said real estate. By the terms of the contract Wyatt was to do the work free and clear of all liens. This contract was not recorded in the office of the Recorder of Noble County. No signs were posted at the place where the work was being done stating the work was being done under a no-lien agreement with said Wyatt. Subsequent to the execution of this contract appellant, on order of said Wyatt, sold and delivered lumber, cement, hardware and other material of the value of $354.07 to said purchaser and these materials were used in the construction, erection and remodeling of said buildings. On the 22nd of October, 1948, within sixty days from the time of furnishing said materials, appellant filed and caused to be recorded in the office of the Recorder of Noble County, a notice in writing of its intention to hold a lien on said property. This notice was signed 'Kendall Lumber & Coal Company, by Jesse Newkirk, Sec. Mgr.'

It is undisputed that the material furnished went into the building. There was a conflict in the evidence as to whether the purchaser had, on the occasion of the first delivery of material, informed an employee of appellant by telephone that only Wyatt was liable for the cost of said material. Because of the conclusion we have reached, we do not deem that matter material to the question here presented.

At the outstart, the owner and purchaser assert that because the assignment of error here is the overruling of the motion for a new trial and the only specification in that motion is that the decision of the court is contrary to law, there is no question whatever in this case as to the evidence. We cannot agree with this contention. This is an appeal from a negative judgment. Under this assignment appellant may present the question of whether the evidence shows conclusively that it was denied relief to which it was entitled under the law. Wilson, Administratrix, v. Rollings et al., 1938, 214 Ind. 155, 14 N.E.2d 905; Lease v. G. & A. Truck Lines, Inc., Ind.App.1950, 90 N.E.2d 351; Warren Company, Inc., v. Exodus, 1944, 114 Ind.App. 563, 53 N.E.2d 546.

Other technical defects have been waived because appellees sought and obtained an extension of time in which to file their briefs. Lease v. G. & A. Truck Lines, Inc., supra; Gamble v. Lewis, Ind.Sup.1949, 85 N.E.2d 629, 632.

Section 43-701, Burns' 1940 Replacement Supp., provides in part as follows:

'Contractors, subcontractors, mechanics, journeymen, laborers and all persons performing labor or furnishing materials or machinery for the erection, altering, repairing or removing any house, mill, manufactory, or other building * * * may have a lien separately or jointly upon the house, will, manufactory or other building * * * for which they may have furnished materials or machinery of any description, and, on the interest of the owner of the lot or parcel of land on which it stands or with which it is connected to the extent of the value of any labor done, material furnished or either; * * * and should the person, firm, or corporation be in failing circumstances the above-mentioned claims shall be preferred debts whether claim or notice of lien has been filed or not.

'No provision or stipulation in the contract of the owner and principal contractor that no lien shall attach to the real estate, building, structure or any other improvement of the owner, shall be valid against subcontractors, mechanics, journeymen, laborers or persons performing labor upon or furnishing materials or machinery for such property or improvement of the owner, unless the contract containing such provision or stipulation shal be in writing, and shall be acknowledged as provided in case of deeds and filed and recorded in the recorder's office of the county in which such real estate, building, structure, or other improvement is situated not more than five (5) days after the date of the execution of such contract, and unless the owner, before the commencement of the work under said contract, shall post or cause to be posted a notice not smaller in size than three (3) feet by three (3) feet in a place upon said premises conspicuous at all times to all subcontractors, mechanics, journeymen, laborers or persons performing any work upon said premises or furnishing any material or machinery for such property or improvement, and shall maintain or cause such notice to be so maintained upon said premises at all times during the progress of the work under said contract. Said notice shall be substantially in the following words: 'This work to be done under a no-lien contract between the owner and the principal contractor. (name) ________, owner', and in letters not smaller than three (3) inches in height. The recorder shall record such contract at length in the order of time of its reception in books provided by him for that purpose, and the recorder shall index the same in the name of the contractor and in the name of the owner, in books kept for that purpose, and said recorder shall receive therefor a fee such as is provided for the recording of deeds and mortgages in his office.'

It has been consistently held that oral notice of a 'no-lien contract' is not sufficient to avoid the requirements of statutes analogous to the one here under consideration. The requirement of the statute as to the recording and giving of notice of such a contract is mandatory and the burden of proving compliance with the statute is upon the owner of the real estate who desires to avoid responsibility for the improvements. 36 Am.Jur. pp. 88, 90, 94; 123 A.L.R. 55, Subd. VI.

Therefore, because the contract between the purchaser and the contractor herein was not recorded, and no notice as required by the statute was placed on the premises, the right of appellant to a lien on the purchaser's interest in the property was not waived by the contract. Hutton et al. v. McGuire et al., 1928, 88 Ind.App. 163, 168, 161 N.E. 648 (Transfer denied).

The appellees contend the statutory notice of the lien was fatally defective because it was signed 'Kendall Lumber and Coal Company' instead of 'Kendall Lumber and Coal Company, Inc.' The same contention was rejected by this court in the case of Waverly Company et al. v. Moran Electric Service, Inc., 1940, 108 Ind.App. 75, 81, 26 N.E.2d 55; Talbott v. Hale et al., 1880, 72 Ind. 1.

Appellees further contend the complaint herein does not state a cause of action because it does not allege appellant sold any materials under an agreement with the contractor or any one else for use upon the particular real estate.

Conceding without deciding that the complaint herein does not set out with sufficient clarity that the materials were furnished 'for' the building, in our opinion appellees, by failing to demur to the...