McCormack v. Phillips

• Decision Date: 26 May 1887
• Parties: McCormack v. Phillips.
• Court: South Dakota Supreme Court

34 N.W. 39

4 Dak. 506

McCormack

v.Phillips.

Supreme Court of the Territory of Dakota.

May 26, 1887.

Appeal from district court, Minnehaha county; Palmer, Judge.

Action to enforce a mechanic's lien.

The fourteenth assignment of error arose out of the defendant's testimony, the substance of which, so far as material, is as follows: Plaintiff having been refused an advance of $500 on the contract with defendant, gave an ordinary promissory note, payable in 60 days, with interest, and signed by himself and the firm of Leavitt & Vincent, on which defendant advanced $500. Shortly afterwards plaintiff applied to “take up the note, and get a receipt on the contract.” This the defendant refused, for the reason that he had recently accepted several orders drawn on him by plaintiff. Defendant told the maker, Vincent, that to protect him the note should be put in the hands of a third party, and when plaintiff had earned it under the contract, he should have it. Defendant, at the trial, testified that the note remained in the hands of a third party, and offered to show that plaintiff never demanded it. He further offered to surrender the note at the trial, provided the amount of it should be found due plaintiff on the contract. The court ruled: “I do not think we will spend any time over that $500, *** since it appears that that note is outstanding against McCormack at this time, as this case is now presented.”

The instruction referred to in the fifth assignment of error was given on the return of the jury to the court-room for instructions in regard to special findings, and was as follows: “With reference to these special findings, they have nothing to do with the verdict, but they are proper questions of fact which they want you to find; that is, they want you to answer these in addition to your verdict. When you agree upon a verdict, then read these over, and answer these ‘Yes' or ‘No,’ as you find them; or do this before you agree upon a verdict. At any time read over those questions, and answer them ‘Yes' or ‘No.”’

The defendant's first request to charge, which was refused, was as follows: “If you find from the evidence that certain orders were drawn upon the defendant by the plaintiff in favor of third parties, and accepted by the defendant before January 16, 1883, then said defendant was entitled to have said credits allowed him by plaintiff when he filed his lien, no matter whether said orders were actually paid at that time or not, unless plaintiff shows a demand made by the holder on defendant, and a refusal by defendant to pay.” The remainder of the defendant's requests was to the effect that the defendant must have a verdict unless the plaintiff proved that the affidavit filed for the lien contained a just and true statement of the account, after allowing all credits; and that the plaintiff's intention in omitting any credits was immaterial. Previous to filing the lien, plaintiff had drawn certain orders upon defendant, which were not credited in the account filed. The court charged, in substance, that, if the orders were not accepted before the lien was filed, or, although accepted and paid, if the plaintiff did not know of their acceptance and payment, he would be entitled to a verdict; that the omission of the credits from the account filed would not invalidate the lien, unless intentional.

The remaining facts are sufficiently stated in the opinion.

Wilkes & Wells and C. H. Winsor, for respondent. S. E. Young and Andrew C. Phillips, per se, for appellant.

FRANCIS, J.

This case comes up on appeal from the district court of Minnehaha county, Fourth judicial district. The plaintiff brought his action and filed his complaint for the enforcement of a mechanic's lien, and for other relief. The defendant filed an amended answer, denying that the plaintiff was entitled to his lien, and alleging nothing due to the plaintiff, payment in full, and setting up, by way of counter-claim, damages for bad work done by plaintiff, and also arising from his failure to complete the dwelling-house within the time agreed upon in the contract, etc. Plaintiff replied to counter-claim, denying the same. The case was by stipulation referred by the court to a referee, and tried before him. Then, by another stipulation, the report of the referee was set aside, and the case was, as provided in said stipulation, tried as a jury case, and the jury returned, as their verdict: “We, the jury in the above entitled action, find all the issues herein in favor of the plaintiff, and assess his damages at the sum of five hundred and ninety-four and nine one hundredths dollars, including interest to date, and that he is entitled to a lien therefor.” Thereupon the court rendered judgment in favor of plaintiff and against the defendant for that sum, with interest at seven per cent per annum from date of judgment, and for costs; and “further ordered, adjudged, and decreed that the said plaintiff do have and hold a lien for said sum of money,” upon certain lots, and a dwelling-house situated thereon, the same property on which the lien was filed and claimed, and that execution issue to the sheriff directing him to sell said premises to satisfy said lien in the manner provided by law for the sale of real property under execution. The defendant appealed.

The important questions brought up by this appeal, and the views expressed in this opinion, will be the better understood in connection with the complaint, amended answer, reply, and stipulation, which are as follows:

“complaint.

The plaintiff in his complaint states his cause of action as follows:

(1) That he is by occupation and trade a contractor and builder, and that on or about the third day of April, 1882, he and the defendant, Andrew C. Phillips, entered into an agreement in writing, a copy of which said agreement is hereto attached, marked ‘A’ and made a part hereof, whereby this plaintiff agreed to furnish the materials and erect for the defendant a certain dwelling-house, according to plans and specifications, which also were then and there agreed upon in writing, and a copy of which is hereto attached, marked ‘B,’ and made a part hereof.

(2) That after the making of the said contract above mentioned, and about the same date, this plaintiff and defendant entered into other and further verbal agreement, whereby this plaintiff, for and in consideration of the sum of six hundred and thirty dollars to be to plaintiff paid by the defendant, agreed to construct and build, and furnish the materials therefor, a certain barn and outhouse upon the same premises and land with said dwelling-house. And plaintiff further avers that during the progress of the work upon said dwelling-house plaintiff did and performed, at the request of the defendant, certain other work and made certain changes and furnished extra materials on said dwelling-house, all of which were not embodied in nor a part of said written agreement; and the value of said work, changes, and extra materials amounts to the sum of ten hundred and twenty-one and 76-100 dollars, as same will more fully appear by the detailed account thereof hereto attached, marked ‘C’ and made a part hereof; and the said defendant agreed with the plaintiff to pay him said sum of money above, and in addition to the price agreed upon in said written agreement.

(3) That the plaintiff has on his part duly performed all of his agreements, but the defendant on his part has failed to pay the plaintiff the sum of sixty-four hundred and twenty-one and 76-100 dollars, due to plaintiff for said work, labor, and materials, or any part thereof, except the sum of six hundred and thirty dollars, to apply in payment for said barn and outhouse; and the further sum of twenty-eight hundred and fifty-one and 64-100 dollars, to apply generally upon the amount due for the said work, labor, and materials done and furnished in and upon said dwelling-house; and there is yet due and unpaid to plaintiff, on account thereof, the sum of $2,940.12.

(4) That the lands upon which said dwelling-house is situated are lots Nos. 15, 16, 17, and 18, and the north half of lot 14, all in block No. 15, in Bennett's addition to Sioux Falls, in Minnehaha county, Dakota territory, and the defendant was at the time of the making of said agreement and still is the owner thereof.

(5) That on the eighteenth day of January, 1883, this plaintiff, for the purpose of securing a lien upon said premises for the work and materials aforesaid done and furnished, duly filed with the clerk of the district court for Minnehaha county a just and true account of the demand due plaintiff, after allowing all credits, and containing a correct description of the property charged with said lien, and duly verified, a copy of which is hereto attached, marked ‘D,’ and made a part of this complaint.

(6) That plaintiff has paid the sum of six dollars and fifty cents for drawing and filing the said lien.

Wherefore plaintiff demands judgment for the sum of twenty-nine hundred and forty-six and 62-100 dollars, ($2,946.62,) and that the same be adjudged a lien against the lots and dwelling-house above described.

That the said premises, building, and appurtenances be sold under the decree of this court by the sheriff of Minnehaha county, and that the proceeds of such sale be applied to the payment of said claim of plaintiff, and the costs of this action; and that the plaintiff may have such other and further relief as may to the court seem just and proper.”

The contract marked “A,” annexed to the complaint, is as follows:

“This agreement, made this third day of April, A. D. 1882, between Andrew C. Phillips and Samuel McCormack, both of Sioux Falls, county of Minnehaha and territory of Dakota, witnesseth that, in consideration of the mutual promises herein contained, the parties hereto agree as follows: Said McCormack will provide the materials for, forthwith commence and build, without delay or intermission, except...