Marriner v. Paxton

• Decision Date: 07 July 1885
• Citation: Marriner v. Paxton, 17 Neb. 634, 24 N.W. 209 (Neb. 1885)
• Parties: EDWARD MARRENER AND GEORGE T. KIMBALL, APPELLANTS, v. WILLIAM A. PAXTON, APPELLEE
• Court: Nebraska Supreme Court

24 N.W. 209

17 Neb. 634

EDWARD MARRENER AND GEORGE T. KIMBALL, APPELLANTS, v. WILLIAM A. PAXTON, APPELLEE

Supreme Court of Nebraska

July 7, 1885

APPEAL from Douglas county. Tried below before WAKELEY, J.

AFFIRMED.

George B. Lake, John D. Howe, and Charles Ogden, for appellants.

Congdon Clarkson & Hunt, for appellee.

MAXWELL J. REESE, J., concurs. COBB, CH. J., dissents.

OPINION

MAXWELL, J.

In April, 1882, the defendant entered into a contract with R. C. Steele & Johnson, of Omaha, to furnish the glass for a warehouse he was then erecting in Omaha. Those parties not having the glass themselves, sent the order to the plaintiffs, who were dealers in glass in Chicago. The order was filled on the 3d of May, 1882. The glass seems to have been directed to Steele and Johnson, Omaha, and was received by them on or about the 11th of May of that year. On the 16th of that month said firm executed a chattel mortgage to the First National Bank of Omaha, as stated by the junior member of the firm in his testimony, "on all the goods and chattels of said firm. The mortgage among other things covered about fourteen hundred boxes of window glass, in which were the four cases or boxes of plate glass and the forty boxes of double thick French glass which are included and mentioned in exhibit A." (That purchased for the defendant.) Soon afterwards the bank foreclosed the mortgage. Mr. Marrener, one of the plaintiffs, was present at the sale and bid $ 1,000 for the glass which his firm had furnished to Steele and Johnson for the defendant. Afterwards the plaintiffs filed an account against Paxton for the value of the glass, and claimed a mechanic's lien as subcontractors upon the defendant's building and the lots on which it stands. The court below found the issues in favor of the defendant and dismissed the action. The only objection is that the finding is against the weight of evidence.

The question here involved is substantially the same as in Foster v. Dohle, ante p. 631. We have no doubt that in a proper case, one furnishing materials in good faith for the erection of a building under an agreement with a contractor for that purpose, may file a mechanic's lien upon the structure and the lots on which it stands. The lien is given, however, not upon the ground that a contract was made by the owner with such subcontractor, but because the material so furnished was used in the erection of the building. The...