Morgan v. Brightwood Lumber Co.

• Decision Date: 14 April 1937
• Docket Number: 15219.
• Citation: 7 N.E.2d 525,104 Ind.App. 4
• Parties: MORGAN v. BRIGHTWOOD LUMBER CO. et al.
• Court: Indiana Appellate Court

7 N.E.2d 525

104 Ind.App. 4

MORGAN v. BRIGHTWOOD LUMBER CO. et al.

No. 15219.

Appellate Court of Indiana, in Banc.

April 14, 1937

Kane Blain & Hollowell, of Indianapolis, for appellant.

J Fred Masters, of Indianapolis, (Emanuel E. Buckler, of Indianapolis, of Counsel), for appellees.

KIME Judge.

This is the second appeal in this case by this appellant. In the first case this appellee, together with others sought to foreclose mechanics' liens held by them against certain property owned by the appellant. Morgan v. Henry Brick Company (1931) 92 Ind.App. 478, 176 N.E. 237. Following the reversal of that case, this cause was venued to another county. Following the sustaining of a demurrer to the complaint two of the plaintiffs declined to plead further and the appellee Brightwood Lumber Company filed an amended complaint in two paragraphs seeking the foreclosure of its mechanics' lien. To this complaint appellants answered in two paragraphs (1) general denial and (2) setting up a lease entered into between appellant and one Everett. Brightwood Lumber Company filed a reply in general denial to the second paragraph of answer. There then followed a trial by the court, and upon proper request the court made a special finding of facts and stated its conclusions of law thereon. Following a motion for new trial, judgment was rendered in favor of the Brightwood Lumber Company and the court ordered sale of the property, the proceeds from which were to be applied to satisfying the judgment. The grounds of the motion for new trial were that the decision was not sustained by sufficient evidence; that it was contrary to law; and that the court's special finding of facts numbered 3 and 5 were not sustained by sufficient evidence. This motion was overruled and this action, together with the independently assigned error that the court erred in its conclusion numberered 2, are the errors relied upon here for reversal.

The finding of facts disclose that Morgan was the owner of the premises described and that in the first part of August 1927, he and one Everett entered into an oral agreement relative to the erection of a filling station on the premises and that building material in the amount of $171.35 was furnished by the Brightwood Lumber Company therefor; that the parties to said contract engaged in a joint enterprise; that some time later they entered into a written lease relative to the premises, which lease was set out in full in the special finding of facts but need not be set out here.

The appellant contends, under the errors relied on by him for reversal, that the decision was not sustained by sufficient evidence and that it was contrary to law, that the theory of the complaint was changed when the complaint was amended in the Shelby circuit court, and for that reason the judgment is contrary to law and not sustained by sufficient evidence. The theory of the original complaint in the Hancock circuit court was exactly the same as the theory of the amended complaint in question here, as is disclosed by the opinion of the court above referred to, both being for the foreclosure of mechanic's liens. The evidence is sufficient to sustain the finding of facts and the decision of the court is not contrary to law for this reason.

Findings numbered 3 and 5 are as follows:

"That during the first part of August, 1927, the defendant Jesse E. Everett had a conversation with the defendant Joseph R. Morgan concerning a proposed lease of the above described real estate for the erection and operation of a gasoline filling station; that it was orally agreed to enter into a twenty year lease to said defendant Everett in the near future, and that said Everett was to begin the erection of said station as soon as possible; that the defendant

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