Minnich v. Darling

• Decision Date: 10 January 1894
• Docket Number: 1,073
• Citation: 36 N.E. 173,8 Ind.App. 539
• Parties: MINNICH v. DARLING ET AL
• Court: Indiana Appellate Court

36 N.E. 173

8 Ind.App. 539

MINNICH v. DARLING ET AL

No. 1,073

Court of Appeals of Indiana

January 10, 1894

From the Elkhart Circuit Court.

Judgment reversed, at the costs of appellees.

H. C Dodge, for appellant.

W. L Stonex and E. A. Dausman, for appellees.

LOTZ J. ROSS, J., concurs in the result. GAVIN, J., and DAVIS, J., dissent.

OPINION

LOTZ, J.

It affirmatively appears that the judgment rendered by the trial court was based upon the first paragraph of the appellee's complaint. It is the ordinary action to recover judgment and to foreclose a materialman's lien for materials furnished to the owner of real estate for the construction of a dwelling house thereon.

The appellant filed an answer in denial, and it was agreed of record that all defenses might be given under this answer.

The court made a special finding of facts, and stated conclusions of law. They are substantially as follows:

"First. That, on the 18th day of February, A. D. 1888, the defendant made a contract with one Louis M. Smalley to erect a dwelling house upon the south half of lot number twenty-eight, of the town of Elkhart, of the county of Elkhart, and State of Indiana, excepting eighty feet off the east end thereof, of which said real estate the said defendant, at the time of entering into said contract and continuously from thence until the 10th day of September, A. D. 1888, was the owner in fee-simple; that by the terms of said contract the said Louis M. Smalley was to furnish all the materials and perform all the labor in the construction of the said dwelling for a given sum, and that changes in the plans and specifications might be made by defendant, to be charged for by the said Smalley, and that the said contract was reduced to writing and executed by the defendant and the said Smalley.

"Second. That subsequent to the execution of the said contract, and during the month of March, A. D. 1888, the said Smalley commenced the work of constructing the dwelling house, as per his written contract, and finished the same on the 16th day of August, A. D. 1888.

"Third. That during the entire period of the construction of the said dwelling house, the plaintiffs, Stafford Maxon and Eber Darling, were partners trading under the firm name of Maxon & Darling, and the said firm was engaged in the lumber business.

"Fourth. That about the fourth day of April, A. D. 1888, the said contractor, Louis M. Smalley, commenced to purchase lumber and materials of plaintiffs, to be used in the construction of the said dwelling, directing the plaintiffs to charge the same to the defendant, and continued so to purchase such materials of plaintiffs and to have the same so charged, until the 10th day of August, A. D. 1888, during which period he purchased all the items charged in the plaintiff's complaint at the dates and prices therein stated, amounting in the aggregate to $ 252.68, all of which was so used in said dwelling, and that plaintiffs did charge the items, as the same were purchased, to the said defendant.

"Fifth. That the defendant did not authorize the said Smalley to purchase the said bill of lumber and material on his account, and did not know that the same were being so purchased, until some time in the month of July, A. D. 1888, at which time he inquired of the plaintiffs, at their place of business, (in substance) whether Smalley was buying lumber of them for his house, and in reply was informed that he was; that the bill was charged direct to the defendant; the book account was at said time shown to him and footed up in his presence, and the amount stated to him; that he made no objection to the charge being made to him, but requested plaintiffs to make out an itemized statement of it and present it to him the next time he came in from his run as a U.S. postal clerk, and said that he would fix it up at that time, and that subsequently to the said conversation plaintiffs sold a part of the items enumerated in their complaint, and plaintiffs did not know anything about the contract between defendant and Smalley, until all the items in said account were sold and charged, as aforesaid.

"Sixth. That on the 10th day of September, A. D. 1888, and within sixty days of the date of the last items purchased in the said bill, the plaintiffs filed in the proper recorder's office in the county of Elkhart, and State of Indiana, the notice of mechanic's lien, as set forth in the complaint, and the same way duly recorded on said date in the miscellaneous record of the said county, in book 4, at page 354; that the said notice of lien contains and describes more land than was owned at said date by said defendant; the word eight, in the exception in said description, should have been eighty to have properly described his said land; that the plat in which said lot is situate is the plat first laid out for the town (now city) of Elkhart, but is not designated of record as the 'original plat,' and no other plat is so designated.

"Seventh. That the amount now due plaintiffs, including interest on the account so purchased by Smalley and so charged to defendant, is $ 311.43.

"Eighth. That a reasonable fee for plaintiff's attorneys in the prosecution of this suit is $ 155." * * *

And, as conclusions of law upon the facts, the court finds:

"First. That by his acts in the month of July, 1888, as set forth in No. 5, of the finding of the facts, the defendant ratified the acts of Smalley, and became bound for all the goods previously bought and for such goods as Smalley subsequently purchased in his name for the purposes of the completion of the defendant's said dwelling, and defendant is liable for the entire bill.

"Second. That the notice of lien is sufficiently definite to hold defendant's lot, as described in plaintiff's complaint."

The appellant excepted to the conclusions of law and moved for a judgment in his favor on the findings. This motion was overruled, and the court rendered judgment in favor of the appellees, and decreed a foreclosure of the lien. The appellant then filed a motion for a new trial; this motion was also overruled. Each of these decisions of the trial court is assigned as error in this court.

The office of a special finding or verdict is to determine the facts which give rise to legal conclusions embraced within the issues formed by the pleadings of the parties. Such facts are the source and cause of the law. They are the result or effect of the evidence, and are sometimes denominated the inferential or ultimate facts. The purpose of a judicial inquiry is to ascertain the facts upon which the law depends. Every ultimate fact is intimately related to many other facts. These attendant facts, not being of controlling legal importance, are denominated the evidentiary or subsidiary facts. The special findings, generally speaking, should be limited exclusively to the ultimate facts proved by the evidence. Ordinarily no evidence, no evidentiary facts, no conclusions of law, have any proper place in the special findings, and, if so found, must be disregarded in stating the legal conclusions.

The appellees' complaint alleges, that the appellant purchased materials of them for the construction of a dwelling house; that said materials were so used; that they gave notice of their intention to hold a lien thereon; that the value of said materials is a given amount, and that same is due and unpaid.

To entitle them to the relief prayed for, it was necessary that they should prove, and that the court should find, that there was a contract for the purchase of the material between them and the appellant, the value of the materials, and the amount due and unpaid. Such facts would entitle the appellees to a personal judgment. To entitle them to the enforcement of a lien, it was necessary to prove, and for the court to find that the materials were furnished for, and used in, the construction of the house, and the giving of the notice of intention to hold a lien. If these facts are...