Millsap v. Ball

• Decision Date: 11 November 1890
• Citation: 30 Neb. 728,46 N.W. 1125
• Parties: MILLSAP v. BALL ET AL.
• Court: Nebraska Supreme Court

30 Neb. 728

46 N.W. 1125

MILLSAP

v.BALL ET AL.

Supreme Court of Nebraska.

Nov. 11, 1890.

Syllabus by the Court.

1. Where a vendee of real estate, under a contract of sale containing a stipulation that the purchaser shall construct a building upon the premises, erects a building thereon, the laborer or material-man is entitled to a lien against the property paramount to the lien of the vendor.

2. Under section 2 of the mechanic's lien law, a subcontractor to obtain a lien must make out and file, with the recorder of deeds of the county where the building is erected, a sworn statement of the amount due from the contractor for labor and materials, within sixty days from the performing of the labor and furnishing of the materials.

3. The contractor cannot maintain a suit against the owner, until after the expiration of that time.

4. If a building is not constructed according to contract, the owner is entitled to offset any damages he may have sustained thereby, and the lien attaches for the amount actually due after deducting such damages.

Appeal, from district court, Douglas county; GROFF, Judge.

Scott & Scott, McCoy & Olmsted, and H. B. Holsman, for appellant.

W. J. Connell and W. C. Ives, for appellees.

NORVAL, J.

The record shows that on the 26th day of September, 1887, lots 6 and 7, block 5, Omaha View, were owned by Boggs & Hill, and on that day they sold the lots to the defendant A. F. Groves, for the sum of $2,600. The sum of $115 was paid in cash, and time was given for the balance. Boggs & Hill delivered to Groves the following receipt and memorandum of the terms of sale: “September 26, 1887. Received of A. F. Groves one hundred and fifteen ($115) dollars, to apply on lots six and seven, block five, Omaha View; price of lots to be $2,600; contract to be given for same when the foundations for buildings on said lots are commenced; payable as follows: In five equal payments, on or before, at 8 per cent. Houses to cost at least $600 to $700 each. BOGGS & HILL.” At the time of the sale the lots were vacant and unimproved. Groves went into possession, and contracted with the defendant Ball to erect four cottages on the lots. The buildings were constructed, and the plaintiff, Millsap, and several of the subcontractors, who are defendants, filed their liens for materials furnished and labor performed for the construction of the buildings. This action was brought by A. Millsap against John Ball, the contractor, Boggs & Hill the vendors, A. F. Groves, the vendee, and the several lienholders, to foreclose his lien. Each lienholder filed a cross-petition, setting up his lien upon the premises and buildings. The defendants Boggs & Hill deny in their answer the claims of the mechanics and material-men, and admit that they made the agreement in writing with the defendant Groves, copied above, by which they agreed to sell to him the lots in controversy, and that the defendant Groves agreed to pay them therefor the sum of $2,600, in the manner following, to-wit: Cash $115, and the balance in five equal payments. The answer further states that it was agreed that, upon the payment in full of said sums of money, and certain taxes and interest, Boggs & Hill were to make to Groves a warranty deed for said premises; that Groves went into possession under said contract, and paid the cash payment of $115; and that said contract is in full force. Boggs & Hill claim a vendor's lien on the lots and the buildings thereon superior to the liens of the mechanics and material-men. The defendant Groves for answer denies that either of the parties to the action has any valid lien or interest in said property. He further sets up that he contracted with Ball to furnish all labor and materials and erect four houses on the lots for the sum of $700; that, about January 4, 1888, after partly completing the buildings, Ball abandoned, refused, and neglected to carry out the terms of the contract; and that neither Ball nor any of the subcontractors have carried out the agreement; that the defendant Groves, on the 15th day of May, 1888, completed said buildings so far as practicable, considering the unworkmanlike manner in which the work was performed and the inferiority of the materials furnished by Ball, and that all the mechanics' liens were prematurely filed before the completion of the buildings. There are other allegations in the answer of Groves, to which it is not necessary to refer. The court found that there was due from Groves to Boggs & Hill $2,485, balance of purchase money, together with 8 per cent....