McCormack v. Phillips
Decision Date | 26 May 1887 |
Citation | 34 N.W. 39,4 Dakota 506 |
Parties | McCormack v. Phillips. |
Court | North Dakota Supreme Court |
Appeal from district court, Minnehaha county; PALMER, Judge.
Action to enforce a mechanic's lien.
Wilkes & Wells and C. H. Winsor, for respondent. S. E. Young and Andrew C. Phillips, per se, for appellant.
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:
The contract marked "A," annexed to the complaint, is as follows:
The specifications marked "B" are annexed to complaint. Also account marked "C," same as set out in lien claim.
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