Ohlin v. Kowner
| Decision Date | 01 June 1921 |
| Citation | 114 A. 117,96 Conn. 394 |
| Court | Connecticut Supreme Court |
| Parties | OHLIN v. KOWNER et al. |
Appeal from Court of Common Pleas, New Haven County; Earnest C Simpson, Judge.
Action by Charles Ohlin against Max Kowner and others to recover for materials furnished and services rendered in the construction of a building standing on land owned by defendant. From judgment for plaintiff for $250, defendants appeal. No error.
This action was returned to the court of common pleas on the first Tuesday of December, 1919. The complaint then alleged that the defendant Mary Friedman was the owner of land on which stands a building in in the construction of which the plaintiff had furnished materials and rendered services " under an agreement with the defendant Mary Friedman through her authorized agent" ; that he began so to do March 8, 1918, and ceased May 11, 1918; that $227 was due him; that on June 11, 1918, he served notice of intention to claim a mechanic's lien to be served on the defendant Mary Friedman, and on the same day lodged a certificate of such lien, in writing and properly made and signed, with the town clerk of the town in which the building is situated; that seven other defendants claimed to have liens on this land of Mary Friedman subsequent to the plaintiff's lien; that the defendant Mary Friedman had conveyed this land to the defendant Max Kowner by warranty deed dated June 12, 1919; and that she and Kowner were still in possession of the premises. The plaintiff claimed $300 damages, a foreclosure of the mechanic's lien, immediate possession of the premises, and such other relief as equity might grant. After the action had been returned to court, the plaintiff filed an amendment to his complaint, on January 6 1920, setting forth that, on motion of the defendant Kowner a judge of the court of common pleas had " made an order dissolving said mechanic's lien and approving in lieu thereof a bond in the penal sum of $400, wherein said defendant Mary Friedman is principal and Harry Spievack of New Haven is surety, which bond is conditioned for the payment of such amount as this court may adjudicate to have been secured by said lien." All claims for relief except for damages were struck out. On January 23, 1920, the court made an order dropping the seven subsequent lienors as codefendants. Harry Spievack, the surety on the bond, was never made a party defendant.
An answer was filed February 5, 1920, denying that the plaintiff had furnished materials and rendered services under an agreement with the defendant Mary Friedman and that anything was due therefor, and in effect admitting the other allegations of the complaint. The answer also set up a second, third, and fourth defense, as follows:
Second that the plaintiff had made a written contract with one Flauman, who then was the contractor for the construction of the building referred to in the complaint, to furnish materials and work therein, and a copy of the contract was annexed as Exhibit A; that the plaintiff did this work so poorly that it was of no value; and that Flauman had paid the plaintiff already more than the services and materials were worth.
Third, that the plaintiff had not filed a mechanic's lien within 60 days after he ceased to perform services and furnish materials in the building.
Fourth, that at the time the plaintiff made the contract with Flauman mentioned in the second defense, the defendant Mary Friedman was the owner of and Flauman the original contractor for the building to be erected; that the plaintiff served no notice of intention to claim a lien on Mary Friedman's premises before she had paid to Flauman in good faith all that was due to him on account of the services and materials furnished by him. This answer is subscribed, " Mary Friedman, Harry Spievack, by Their Attorney, C. S. Hamilton."
The plaintiff filed his reply February 20, 1920, in which he admitted the allegations in the second defense that the contract he had made was made with Flauman, as shown in Exhibit A, denied that his work was poorly done, and that he had been paid for it. He also denied that his claim had not been filed within 60 days after he ceased to furnish materials, and that Mary Friedman had paid Flauman in full and in good faith before notice of his intention to claim a lien was served on her.
Upon the issues thus made the trial was begun. After the plaintiff had introduced a considerable part of his evidence, he asked leave to file an amendment to his complaint by striking out the paragraph which alleged that his contract was made with Mary Friedman, and substituting the following:
" (2) The plaintiff furnished materials and rendered services in the construction of a house on said land under an agreement on February 25, 1918, with S. B. Flauman, who was the principal contractor for the construction of said house, to the value of $377."
This the court allowed notwithstanding the objections of defendants. Then they asked to be allowed time to prepare and file a demurrer to the complaint thus amended. The court refused this request, and the defendants excepted to these rulings. They then asked for time in which to redraft the whole answer and change the defenses into a different form. The court having granted this request, the defendants presented a draft of an answer beginning with the following paragraph:
" These defendants, being compelled to answer to said complaint as amended by leave of the court on March 23, 1920, and no hereby admitting the sufficiency of the allegations thereof, answer as follows."
The court refused to permit this answer to be filed until this paragraph had been struck out; and the defendants, excepting to this ruling, struck out this paragraph, and the answer then was filed. Therein the defendants admitted the allegation in the substituted paragraph 2 of the complaint that the plaintiff's contract was made with Flauman, and denied that his work and materials were of any value. In every other particular this amended answer was identical in substance and form with the original answer filed February 20, 1920, excepting that a fifth defense was added which related to the claims of subcontractors under the statute regulating the rights of lienors.
Thereupon the plaintiff filed a reply denying this added defense, and in other respects the same as his former reply.
The trial then proceeded, the parties were fully heard, and the cause submitted to the...
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Franchi v. Farmholme, Inc.
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