Krotter & Sailors v. Pease, No. 33893

• Court: Supreme Court of Nebraska
• Writing for the Court: Heard before SIMMONS; BOSLAUGH
• Citation: 74 N.W.2d 538,161 Neb. 774
• Decision Date: 03 February 1956
• Docket Number: No. 33893
• Parties: KROTTER & SAILORS, a Co-partnership, Appellant, v. Roy J. PEASE and Bernice F. Pease et al., Appellees.

Page 538

74 N.W.2d 538 161 Neb. 774 KROTTER & SAILORS, a Co-partnership, Appellant,
v.
Roy J. PEASE and Bernice F. Pease et al., Appellees. No. 33893. Supreme Court of Nebraska. Feb. 3, 1956.

Page 539

Syllabus by the Court.

1. The right to a mechanic's lien is of statutory origin. It did not exist in common law or in equity.

2. A claimant to be entitled to the benefit of the Mechanic's Lien Act must bring himself within its terms and comply with the procedure required to perfect a lien.

3. If a claimant is within the specifications of the statute granting the right and has complied with the procedure required to perfect a lien the provisions of the statute will be liberally interpreted to accomplish the purposes of the legislation.

4. The Mechanic's Lien Act provides security exclusively for materialmen and laborers.

5. The statute providing for a lien on the premises improved in favor of one who performs labor on or furnishes material for the improvement does not extend to a person who supplies money with which the cost of the work or material is paid.

6. The right to a lien by virtue of the Mechanic's Lien Act is created immediately material is furnished or labor is performed within the provisions of the act if a claim is made therefor as required by the statute.

7. A liberal interpretation of a statute is one which seeks for and fairly and reasonably effectuates the legislative [161 Neb. 775] intent as to the purposes of the legislation as expressed by the language of the statute.

C. M. Bosley, Palisade, Robert C. Bosley, Hayes Center, for appellant.

D. E. Owens, Ross D. Druliner, Benkelman, Robert S. Finn, Tecumseh, Fred T. Hanson, McCook, Jack H. Hendrix, Trenton, Hines & Hines, Benkelman, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

Roy J. Pease and Bernice F. Pease, husband and wife, were the owners as joint tenants of Lot 4 in Block 5, Smith's Addition to Benkelman. They made an oral agreement about December 24, 1951, with Krotter & Sailors, a co-partnership and a retail dealer in lumber, building materials, and hardware in Benkelman, by the terms of which it was to receive the net proceeds of a loan of $8,500 made by the Tecumseh Building & Loan Association to the owners of the premises and appellant was privileged to furnish materials within the lines which it handled for the construction of the house and to pay the cost of the labor and all materials furnished for the building. It was agreed that any amount of the cost of the construction thereof in excess of the amount received by appellant from the proceeds of the loan made to the owners by the building and loan association was to be paid by the owners to appellant when the construction was completed. The loan was made and the net proceeds thereof were received by appellant and it paid the cost of all labor and materials used in the construction of the house as the bills therefor were presented to appellant at its place of business. There were materials used in the building that were not furnished by appellant and some of them were selected and purchased by the owners as it was understood they [161 Neb. 776] might do as a part of the agreement between them and appellant. The cost of these were paid by it. The owners selected and purchased linoleum at the store of Paul F. Morris. He delivered it to the house and installed it therein on April 10, 1952. The residence was completed and the owners moved into it April 12, 1952. The statement for the cost of the linoleum was on June 10, 1952, at the request and by direction of Roy J. Pease presented to appellant by Paul F. Morris and it was paid by appellant. That was the first time that

Page 540

Paul F. Morris knew that appellant was to pay the cost of the linoleum and it was the first time that the appellant knew the cost of it or had the opportunity to pay it.

Appellant filed a claim of lien under the Mechanic's Lien Act in the office of the county clerk of Dundy County October 10, 1952. The last item of the claim of lien is dated June 10, 1952, and is described as 'Paul Morris Linoleum 254.04.' It is not claimed that the linoleum was purchased, delivered to the premises, or installed therein that date. It is established without dispute that it was furnished by Paul F. Morris and installed in the house as floor covering on April 10, 1952. The last item on the claim of lien represents the payment of the cost of the linoleum by appellant to Paul F. Morris. The last material that was furnished for the house was May 19, 1952, and it consisted of four minor items at a total cost of $3.17.

A mortgage given by the owners on the premises as security for the payment of a note they owed the Security State Bank of Bird City, Kansas, was filed for record in the office of the county clerk of Dundy County February 13, 1953. The bank pleaded in this case that the claim of lien of appellant was insufficient and was not a lien on the premises because it was not filed in the office of the county clerk within 4 months of the time any labor was performed or material was furnished in the building of the house as required by the Mechanic's Lien Act of the state.

[161 Neb. 777] Roy J. Pease died August 12, 1954, and Bernice F. Pease became the sole owner of the premises. This case was brought by appellant to foreclose the lien it claimed on the premises by virtue of the claim of lien filed by it as above stated. The district court found upon the trial of the...