Miller v. Taggart

• Decision Date: 28 November 1905
• Docket Number: 5,678
• Citation: 76 N.E. 321,36 Ind.App. 595
• Parties: MILLER ET AL. v. TAGGART ET AL
• Court: Indiana Appellate Court

76 N.E. 321

36 Ind.App. 595

MILLER ET AL. v. TAGGART ET AL

No. 5,678

Court of Appeals of Indiana

November 28, 1905

From Elkhart Circuit Court; Francis D. Merritt, Judge.

Suit by Isaiah Miller and another against Quimby N. Taggart and others. From the decree rendered, plaintiffs appeal.

Affirmed.

Frank H. Dunnahoo, Anderson, Du Shane & Crabill and Harry R Wair, for appellants.

Talbot & Talbot, Deahl & Deahl and C. P. Ducomb, for appellees.

OPINION

BLACK P. J.

The appellants, as partners, sued the appellees and Charles Steinke to recover the value of certain materials furnished by the appellants to Steinke, under a contract between him and the appellants, to be used by him, and which were used by him, in the construction and building of a dwelling-house upon a certain lot in South Bend, Indiana, alleged in the complaint to be owned by the appellees Quimby N. Taggart and Lizzie, his wife, Steinke being the contractor to build the house for the Taggarts, and to foreclose a mechanic's lien on the real estate, the other appellees being made defendants as pretended holders of interests alleged to be inferior to that of the appellants. A judgment for a certain sum was recovered by the appellants against Steinke, and he is not a party to this appeal. The court adjudged that the appellants were not entitled to a lien, and rendered judgment against them for costs.

The questions properly before the court relate to the second paragraph of the answer of Quimby N. Taggart, a demurrer to which was overruled, and to the third paragraph of the reply of the appellants to that paragraph of answer, a demurrer to the third paragraph of reply having been sustained.

In the second paragraph of the answer of Quimby N. Taggart it was in substance shown that he was the owner of the real estate in question. September 19, 1901, he entered into a contract in writing with Steinke for the erection of the house mentioned in the complaint, a copy of this contract being set out in the answer. Steinke wholly failed to comply with or perform this contract, but refused to do so, and left the State of Indiana. Said defendant "has complied with and performed all the provisions and agreements on his part to be performed, and contained in said contract." After the making of this contract the appellants, to secure and insure to said defendant the performance and fulfilment by Steinke of said contract, on September 20, 1901, entered into an undertaking, set out, being a bond executed by Charles Steinke, as principal, and the appellants as sureties, to appellee Taggart in the sum of $ 1,000, conditioned as follows: "The condition of the above obligation is such that, whereas, by certain articles of agreement bearing date September 19, 1901, between the above-bounden principal and the above-named obligee, said principal has contracted to build for the obligee a dwelling-house on," etc. (describing the real estate in question), "according to certain plans and specifications referred to and made a part of said contract; and whereas, on the treaty of said contract it was mutually agreed said principal should enter into the above-written bond as an additional security to said obligee for the due performance of said articles of agreement and each and all of the covenants and agreements contained therein, and for the purpose of saving harmless said obligee from any and all liability and damage and injury on account of the failure, if any, on the part of said principal to comply with said contract or any part thereof, and for the purpose of saving harmless said obligee from any and all mechanics' liens which may be placed upon said house and the land whereon it is situated. Now, if said Charles Steinke shall perform all the covenants above mentioned and in contract, then this obligation shall be void; otherwise, to remain in full force and effect." It was further alleged that when Steinke refused and failed to comply with or complete his said contract, said appellee served upon the appellants a notice in writing, a copy of which was set out, being a notice dated November 13, 1901, from this defendant to the appellants, that Charles Steinke had abandoned the work and completion of, and the performance of, his contract entered into with said appellee for the erection of a certain house, "the completion and performance of which you have...