Meade Plumbing, Heating & Lighting Co. v. Irwin

• Decision Date: 18 October 1906
• Citation: 77 Neb. 385,109 N.W. 391
• Court: Nebraska Supreme Court
• Parties: MEADE PLUMBING, HEATING & LIGHTING CO. v. IRWIN ET AL.

77 Neb. 385

109 N.W. 391

MEADE PLUMBING, HEATING & LIGHTING CO.

v.IRWIN ET AL.

Supreme Court of Nebraska.

Oct. 18, 1906.

Syllabus by the Court.

A party is not estopped to prosecute his appeal by the fact that he accepts the amount of a judgment which the appellee concedes to be due him; the appeal in such case involving only his right to a further recovery.

An agent cannot be held liable on a contract made on behalf of his principal where the other contracting party knows of the relation and enters into the contract intending to hold the principal to its performance.

The materialman, in order to be entitled to a mechanic's lien, must contract for the work and material with the owner or an agent of the owner authorized to make the improvement.

The district court cannot, after the adjournment of the term at which a judgment is entered, amend the same by changing the award of costs to one of the parties, except for some reason mentioned in section 602 of the Code of Civil Procedure, as ground for vacating or modifying a judgment.

Under our former practice a party might take a cross-appeal after the filing of the transcript by the appellant by filing a brief in due season assailing the decree so far as it affected his interest. In order to perfect his cross-appeal the brief should be filed in due season.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Lancaster County; Holmes, Judge.

Action by the Meade Plumbing, Heating & Lighting Company against James M. Irwin and others. Judgment for defendants and plaintiff appeals. Reversed in part, and remanded.Horace F. Bishop and Ricketts & Ricketts, for appellant.

Hall, Woods & Pound, for appellees.

DUFFIE, C.

At the October, 1904, term of the district court of Lancaster county a decree was entered finding due the plaintiffs from the defendants James M. Irwin and Emma McGahey, the sum of $125, for work done and material furnished in the improvement of a building on lot 10 in block 98 of the city of Lincoln. A mechanic's lien for said amount was also foreclosed and the property ordered sold in satisfaction thereof, and for the costs of suit. Irwin is the owner of the property and defended upon the ground that he had not ordered or authorized the making of the improvement for which the lien was claimed. Mrs. McGahey, who ordered the improvement, claimed that it was to be furnished at a cost not to exceed $125, which amount she tendered in her answer; the plaintiff's claim being for $248.26. January 26, 1905, the plaintiffs procured an order of sale on this decree, and placed the same in the hands of the sheriff, who returned the same on February 15th with the following indorsement: “Judgment having been paid into court, this writ is herewith returned. Return, 50c. Mileage, 10c. Nicholas Ress, Sheriff.” January 30, 1905, and after final adjournment of the October, 1904, term, which occurred January 7, 1905, the defendants filed a motion for an order taxing all the costs to the plaintiff for the reason that, on the commencement of his action, the defendants herein filed an answer tendering to the plaintiff the sum of $125, and that since recovery for that amount only had been had, they should not be taxed with the costs. February 16, 1905, the court sustained the motion so far as to require the plaintiff to pay one-half the costs of the suit, and thereupon the plaintiffs took an appeal to this court and insist that they may not only have the order requiring them to pay one-half of the costs reviewed, but also the original decree, and the defendant Irwin claims, upon cross-appeal, that the decree establishing a mechanic's lien against his property was erroneous, and insists that we review and set aside the judgment of the district court in that regard. The defendants insist that the plaintiff cannot accept the benefit of the judgment in its behalf, and at the same time appeal therefrom, while the plaintiff and appellee contends that, as the defendant did not controvert its claim to the extent of $125, the amount for which judgment was given, it was entitled to accept that amount and still appeal from the decree and obtain the opinion of this court upon its right to the balance which it claims to be due. The same question was before this court in Weston v. Falk, 66 Neb. 198, and the present chief justice, who wrote the opinion on rehearing at page 202, 92 N. W. 204, 93 N. W. 131, quoted with approval the language of the Supreme Court of North Dakota in Tyler v. Shea, 61 N. W. 468, 50 Am. St. Rep. 660, as follows: “The rule is well settled that one cannot accept or secure a benefit under a judgment and then appeal from it when the effect of his appeal may be to annul the judgment, unless the right to the benefit is absolute and cannot possibly be affected by the reversal of the judgment. * * * It is the possibility that his appeal may lead to a result showing that he was not entitled to what he has received under the judgment appealed from that defeats his right to appeal. Where there is no such possibility the right to appeal is unimpaired by the acceptance of benefits under the judgment appealed from. * * * The appellant waives his right to appeal if he obtains any benefit under the judgment which, on the appeal, may be taken from him.” Numerous authorities may be cited in support of this rule, among which are Reynes v. Dumont, 130 U. S. 354, 9 Sup. Ct. 486, 32 L. Ed. 934;Embry v. Palmer, 107 U. S. 3, 2 Sup. Ct. 25, 27 L. Ed. 346;U. S. v. Dashiel, 70 U. S. 688, 18 L. Ed. 268;Mellen v. Mellen (N. Y.) 33 N. E. 545. We hold, therefore, that taking out execution for the amount of the decree does not estop the appellant from appealing to this court.

Coming now to the merits of the plaintiff's claim, the evidence is uncontradicted that what was called a proposition for plumbing work and material was published in the Lincoln Journal by the Meade Plumbing Company. Mrs. McGahey saw the advertisement, and had several conversations with Mr. Meade, at that time a partner in the business. These conversations finally resulted in an agreement, by the terms of which the Meade Plumbing Company was to furnish a bathroom in the house, the price of the bath outfit, fixtures, labor, etc., being agreed upon; but the depth of sewerage, the number of...