Kidd Bros. Lumber Co. v. Tonnis

• Decision Date: 05 May 1958
• Docket Number: No. 18841,18841
• Citation: 149 N.E.2d 828,128 Ind.App. 459
• Parties: KIDD BROS. LUMBER CO., Inc., Appellant, v. William E. TONNIS, Jr., Evelyn J. Tonnis, His Wife, William E. Malott and Norma Jean Malott, His Wife, Appellees.
• Court: Indiana Appellate Court

Page 828

149 N.E.2d 828

128 Ind.App. 459

KIDD BROS. LUMBER CO., Inc., Appellant, v. William E. TONNIS, Jr., Evelyn J. Tonnis, His Wife, William E. Malott and Norma Jean Malott, His Wife, Appellees.

No. 18841.

Appellate Court of Indiana, In Banc.

May 5, 1958.

Newlin, Rau & Spreen, Indianapolis, for appellant.

Charles W. Cook, Jr., of Cook, Bose & Buchanan, Albert W. Ewbank, Indianapolis, for appellees.

KELLEY, Chief Judge.

Appellant brought this action against the appellees to foreclose a mechanics lien for materials and lumber allegedly furnished and used in the reconstruction and repair of a house situate on appellees' land. Appellant appeals from a judgment adverse to it on its complaint and for appellees for costs.

The sole question presented and argued by the parties, and the one on which the case must turn, is whether the last material was furnished and delivered by appellant for use in the building under construction within the sixth days prior to the recording of its notice of intention to hold a lien on the land. The notice of lien was duly recorded on January 31, 1952 but the controversy is whether the evidence conclusively establishes that the last materials were furnished and delivered by appellant on December 4, 1951, as appellant claims. The invoices in evidence show that the date of the delivery of material next prior to that of December 4, 1951 was October 24, 1951. Thus the notice of intention to hold a mechanics lien on the real estate involved was not filed within the statutory time unless the last delivery of material was made on December 4, 1951.

Appellant's contention is that his evidence made a prima facie case that the materials were delivered for use in the premises on December 4, 1951 and that the evidence of appellees on the question of delivery possessed no probative value and, therefore, he was denied relief to which the evidence entitled him. The burden, of course, was on the appellant to establish the material elements of his cause, one of which was that the last materials were delivered for use in the premises on December 4, 1951.

The evidence discloses that the contract for the reconstruction work was between appellee, Tonnis, Jr., and the Associated Maintenance & Builders Company, a partnership composed of one Earl Edwards and Claude C. Ash. Prior to the completion of the work Ash quit and left the job, turning over to Edwards the books, records, and specifications pertaining thereto. Before the institution of appellant's action, Edwards disappeared and his whereabouts was unknown. In addition to other invoices bearing prior dates of claimed delivery of material, appellant put in evidence two invoices, numbered 10569 and 10577, respectively, for the materials under date of December 4, 1951. Neither of these invoices show any delivery receipt. One, No. 10569, bears a written notation that the material was called for but not the name of the person making the call or to whom delivery was made. The other invoice does not indicate the manner of delivery nor the person to whom delivery was made.

To establish the fact of delivery and use of the materials invoiced under date of December 4, 1951, appellant called as its witness, the said Claude Ash. He testified as to the agreement with appellee, Tonnis, Jr.; that he had checked over the invoice and that he had personal knowledge that the materials shown by the exhibit were delivered to and used in the work done pursuant to the agreement; that he remained on the job for three months but could not say when he started the work; that he and the two or three men working with him put in 342 working hours but that he didn't know the number of days of work; that during the three months, he worked, intermittently, ten days; that he left the job first, turning the records and specifications over to Edwards, and that when he left the house was all finished but the plumbing and landscaping.

The appellee, William E. Tonnis, Jr., testified that the items listed in the invoices referred to as 31 and 32 (the same being invoices numbered 10569 and 10577, dated December 4, 1951, appellant's Exhibit 1) were not delivered to his residence (the property being improved); that on said date there was no need for the lumber covered by said invoices; that none of said material was left on the premises; that neither Ash nor Edwards nor any of their employees were doing any work on the house during the months of November and December, 1951; that he had a conversation with Ash and Edwards in the last week of October, 1951 and thereafter neither Ash nor Edwards nor any of their employees ever came back to do any work on the house; and that he completed it.

On cross-examination Tonnis testified that the last work by Ash and Edwards was in the latter part of October, 1951; that he was not living in the house during December, 1951; that the place was vacant; that during December, 1951 he was employed as a district manager of a named newspaper circulation department, with varied working hours, generally between three and six or seven in the morning and a few hours later in the day; that he was not on the premises every hour of the day on December 4, 1951 and that some material could have been delivered to the premises and put in the premises in his absence. On re-direct examination, he said that he kept a check and watch on the course of construction throughout the building period; that the main floor was completely plastered on November 1, 1951 and the second floor completed as to the erection of all gables, exterior siding, and roof; that the house was locked up in November and December, 1951; and that he completed the construction after Ash and Edwards discontinued in October, 1951. He further testified that the plastering of the unfinished attic was completed in the early part of October; that 'during that time' (what time was referred to is not revealed) the workmen did have egress to the premises and did go and come, including Mr. Ash and his workmen; that after the last week in October, 1951 he continued to go back to the house and had personal knowledge of what took place in the way of construction; and that there was no place where the items of materials in question could then have been used in the construction.

Appellant asserts that under the rule announced in the case of Rhoades v. State, 1946, 224 Ind. 569, 70 N.E.2d 27, 28, the said testimony of Tonnis has no probative value; and that, therefore, appelle...