Korbly v. Loomis
Decision Date | 02 June 1909 |
Docket Number | 21,296 |
Citation | 88 N.E. 698,172 Ind. 352 |
Parties | Korbly, Receiver, et al. v. Loomis et al |
Court | Indiana Supreme Court |
From Putnam Circuit Court; John M. Rawley, Judge.
Suit by Arthur C. Loomis and another against Bernard Korbly, as receiver for the Collier Bridge Company, and another. From a judgment for plaintiffs, defendants appeal.
Reversed.
George A. Knight, Frank L. Littleton, John H. James, Roemler & Chamberlain and Carson, Thompson & Dowden, for appellants.
Appellees, subcontractors, brought this suit against appellants on a railroad construction contract, and on February 10, 1908, recovered a personal judgment against appellant bridge company, the general contractor, and a decree declaring and enforcing a lien on the right of way and track of appellant railway company, under an amendment of what is known as the "mechanics' lien law" of this State (§ 8305 Burns 1908, Acts 1889, p. 257, § 6).
It is first insisted that the court erred in overruling the demurrer for want of facts of each appellant to the complaint.
It was held by this court in Fleming v. Greener (1909), 173 Ind. , and Cleveland, etc., R. Co. v Defrees (1909), 173 Ind. , that § 8305, supra, which governs the rights of the parties in this case, only embraced mechanics, laborers and materialmen, and did not include contractors or subcontractors, for the reason that they were not within the scope of the title of said act.
We, therefore, hold, upon the authority of said cases, that as appellees, being subcontractors, were not entitled, under said section of the mechanics' lien law, to a lien upon said property of appellant railway company, the court erred in overruling the demurrer of said appellant to the complaint.
Appellees' complaint is in one paragraph, and the written contract sued on is filed with and made a part of the complaint, and appellees agree therein to construct certain concrete arches, abutments and culverts along the right of way of the appellant railway company in Putnam county, Indiana. Appellees also agreed in said contract, among other things, that, before they should be entitled to bring any action on said contract against the Collier Bridge Company, they would perform the following express conditions, to wit:
When the parties to a building contract have made the certificate of an architect or engineer a condition precedent to the assertion of a right thereunder, such provision is valid, and the party claiming such right must show, by proper allegations, the performance of the conditions, a valid reason for noncompliance therewith, or a waiver thereof. White v. Mitchell (1903), 30 Ind.App. 342 345-347, 65 N.E. 1061, and cases cited; Hanley v. Walker (1890), 79 Mich. 607, 45 N.W. 57, 8 L. R. A. 207, and authorities cited; Boettler v. Tendick (1889), 73 Tex. 488, 11 S.W. 497, 5 L. R. A. 270, and cases cited and note on pages 272-274; Barney v. Giles (1887), 120 Ill. 154, 11 N.E. 206; Arnold v. Bournique (1893), 144 Ill. 132, 137, 33 N.E. 530, 20 L. R. A. 493, 36 Am. St. 421, and cases cited; Gilmore v. Courtney (1895), 158 Ill. 432, 41 N.E. 1023; Crouch v. Gutmann (1892), 134 N.Y. 45, 31 N.E. 271, 30 Am. St. 608, 609 and note on page 617; Smith v. Brady (1858), 17 N.Y. 173, 72 Am. Dec. 442. In Hanley v. Walker, supra, the court said: ...
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