Lepin v. C. N. Paine & Co.

• Decision Date: 06 January 1886
• Citation: Lepin v. C. N. Paine & Co., 26 N.W. 370, 18 Neb. 629 (Neb. 1886)
• Parties: HERMINE LEPIN, APPELLANT, v. C. N. PAINE & CO. ET AL., APPELLEES
• Court: Nebraska Supreme Court

26 N.W. 370

18 Neb. 629

HERMINE LEPIN, APPELLANT, v. C. N. PAINE & CO. ET AL., APPELLEES

Supreme Court of Nebraska

January 6, 1886

REHEARING of case reported in 15 Neb. 326.

Case remanded, and case in 15 Neb. modified.

Brown & Ryan Brothers, for appellant.

Batty & Ragan, for appellees Paine & Co.

Dilworth & Smith, for appellee Scales.

OPINION

MAXWELL, J.

This case was before this court in 1882, and is reported in 13 Neb. 521, and again in 1883, and is reported in 15 Neb. 326. In the case last cited it is said that the Lepins were entitled as against Scales to set off the judgment in favor of Paine & Co. against the judgment recovered by Scales against them. A rehearing was granted, and the cause again submitted.

After the decree, so far as Paine & Co. were concerned, was reversed in 1882, upon the cause being remanded to the district court, a motion was filed on behalf of the plaintiff in error the effect of which would be to set off the judgment in favor of Scales against the amount due Paine & Co. for material. No facts were stated in the motion showing the right of Mrs. Lepin to equitable relief.

Mrs Lepin also filed a motion asking among other things that she be permitted "to pay into the court the sum of $ 690 and interest thereon from the commencement of this action at 7 per cent, and that upon such payment being made within sixty days from date of the order, that the defendant and her property be entirely relieved and discharged of any and all liens and claims, and that such payment shall operate as a discharge of all mechanics' liens now in controversy, and of all decrees entered by this court against the defendant and her property in any and all proceedings taken or had in this case." The motions were overruled in the court below, we think properly.

Scales claims in his petition in the original action that Hermine Lepin and Harmon Lepin became indebted to him in the sum of $ 6,098.06 for work and labor performed by him and his servants and employes, and for material furnished in the erection of the hotel in question. A considerable portion of this is for labor performed and material furnished under various modifications of the contract. A number of these changes are admitted and the price to be paid not questioned. The court below seems to have found the very lowest sum possible, under the evidence, in favor of Scales. To what extent this included the claims of Paine & Company involved in this action does not appear. In other words, this court found the claim of Paine & Co. to be a valid claim, and that they were entitled to a mechanic's lien on the property to secure said debt. But there is...