Manor v. Heffner
| Decision Date | 12 May 1896 |
| Docket Number | 1,991 |
| Citation | 43 N.E. 1011,15 Ind.App. 299 |
| Parties | MANOR ET AL. v. HEFFNER ET AL |
| Court | Indiana Appellate Court |
From the Delaware Circuit Court.
Judgment affirmed.
J. W Ryan and W. A. Thompson, for appellants.
J. N Templer and E. R. Templer, for appellees.
ROSS J. LOTZ, J., did not participate.
The appellants, David J. Manor, John D. Krohn and William H. Maitland, as the owners of certain lots in the town of Albany, Delaware county, Indiana, entered into a contract with the appellants, Nicholas Jensen and Harry Huckle, contractors, to furnish the materials and build for them, on said lots, a number of dwelling houses, for which they agreed to pay said contractors a stipulated sum. The contract was afterward modified, reducing the number of houses to be built and lessening the contract price therefor. The number of houses built was sixteen, and the price to be paid therefor was $ 6,945.70. The appellants Jensen and Huckle purchased from the appellees Ezra P. Hubbard, Fred Hubbard and Richard Burnett, a quantity of lumber and other building materials, which they used in the construction of said houses. It does not appear that any particular quantity or part of the lumber or materials was furnished for any particular house or houses, but that it was all furnished together and used by the contractors, or those working for them, as necessary in the construction of all the houses, about equal parts or quantities being used in each house. For the materials thus furnished, notice was filed of an intention to hold a lien on each of the houses. The appellees Jonas A. Hartzell and Robert B. Hartzell were employed by the contractors to plaster the houses, and the appellee George Heffner to do the finishing carpenter work in their construction and completion. Notices of their intention to hold liens for the work done by them were also filed. Three separate actions were instituted in the court below, one by Hubbard, Hubbard, and Burnett, another by Hartzell and Hartzell, and the third by Heffner against all of the appellants, asking personal judgment against Jensen and Huckle and a foreclosure against the others. The three actions, by agreement of the parties, were consolidated and tried as one, all of the appellees recovering against the appellants Jensen and Huckle, while the appellees Hubbard, Hubbard, and Burnett, alone were granted a foreclosure.
It is insisted, on behalf of the appellants Manor, Krohn, and Maitlen, that neither paragraph of the complaint of the appellees Hubbard, Hubbard, and Burnett, states a cause of action, for the reason, as counsel say, that "there is no averment that the materials sued for were furnished for the appellants' building."
It seems to be settled, in this State, that in an action by a materialman, to recover for materials furnished to a contractor, it must appear, not only that they were furnished, but also that they were used in the construction of the building against which a lien is to be enforced in payment therefor. In Jones v. Hall, 9 Ind.App. 458, this court says: The same general doctrine is announced in Clark v. Huey, 12 Ind.App. 224, 40 N.E. 152, Farrell v. LaFayette Lumber & Mfg. Co., 12 Ind.App. 326; Neeley v. Searight, 113 Ind. 316, 15 N.E. 598.
In each paragraph of the complaint of Hubbard, Hubbard, and Burnett, it is alleged, in substantially the same language, that the appellants Jensen and Huckle purchased of the plaintiff "certain building materials, consisting of lumber, dimension stuff, shingles, doors, sash, glass and plastering lath," which were delivered at the "building for the purpose of being used in the erection and construction of the same, and were used in the construction of said building." We think each paragraph of the complaint is good in this respect.
Upon the trial, the court...
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