Pickens v. Plattsmouth Inv. Co.

• Decision Date: 29 June 1893
• Citation: 37 Neb. 272,55 N.W. 947
• Parties: PICKENS v. PLATTSMOUTH INVESTMENT CO. ET AL.
• Court: Nebraska Supreme Court

37 Neb. 272

55 N.W. 947

PICKENS

v.PLATTSMOUTH INVESTMENT CO. ET AL.

Supreme Court of Nebraska.

June 29, 1893.

Syllabus by the Court.

1. The vendor in an executory contract for the sale of land will subject his rights in the property to be conveyed to a mechanic's lien by directly, though in conjunction with the vendee, contracting for those improvements for the construction of which such mechanic's lien is sought to be enforced.

2. If a vendee, in possession of real property by virtue of an executory contract for the purchase of the same, erects improvements thereon, the rights of the vendor in said property are not thereby, of necessity, postponed to the lien of the mechanic or material man under the mechanic's lien law. Such postponement can only be predicated upon a contract of the mechanic or material man with the vendor directly, or through his agent, and such essential contract must be proved as must any other necessary proposition of fact.

Commissioners' decision.

Petition for rehearing.

For prior report, see 31 Neb. 585, 48 N. W. Rep. 473.O. H. Ballou and Wm. L. Browne, for appellants.

J. B. Strode and Matthew Gering, for appellee.

RYAN, C.

This appeal has already received the consideration of this court, as will appear by a reference to 31 Neb. 585, 48 N. W. Rep. 473, where will be found the opinion of Cobb, J., reversing the decree of the district court of Cass county. A rehearing having been granted, it is necessary that the decree appealed from be examined anew in the light of the evidence upon which the cause was originally heard. In the transactions to be considered, there are two corporations codefendants, the names of which are so similar that without great care one is liable to be mistaken for the other. One of these corporations was the Plattsmouth Land & Improvement Company, the other was the Plattsmouth Investment Company. The liability to confusion in the use of these designations is well illustrated in the opinion above referred to, as reported in 31 Neb. 585, for there this case is entitled “William H. Pickens vs. Plattsmouth Land & Investment Company et al.” (Pickens v. Plattsmouth Investment Co., 48 N. W. Rep. 473.) That these appellant corporations may not be confounded, more than usual care is necessary in stating the facts. The Plattsmouth Land & Improvement Company originally owned the land upon which was built the Park House, for the erection of which the enforcement of a mechanic's lien was had in this case. Before any steps were taken for the construction of this building, the Plattsmouth Land & Improvement Company made an executory contract with the Plattsmouth Investment Company to convey to it the real property upon which was erected the Park House. The terms of this contract have not been put in evidence. Indeed, from the testimony it is somewhat doubtful whether this contract was oral or written. In the former opinion it was described as a “parol contract,” which designation we are inclined to regard as a misnomer, for the following reasons: It is nowhere so spoken of by any witness. The only mention of it, and of the status of matters under it, is found in the record in the following language of Dr. Hertzman, whose relation to such company will hereafter appear. He testified as follows: “Question. The Plattsmouth Land & Improvement Company sold a portion of this ground out there, known as the ‘Livingston Heights,’ to the Plattsmouth Land & Investment Company? Answer. No, sir; the Plattsmouth Investment Company had a contract. Q. When was that done? A. I could not tell you without referring to the contract. Q. Do you remember about the date? A. No, sir; I don't. Q. Was that done prior to the time of the building of the Park House? A. Yes, sir. Q. How long prior? A. As far as dates are concerned, I could not give it to you exactly, but it seems to me it was some little while previous to that time. The contract will, of course, show, but I don't remember the dates. * * * Q. They [the investment company] have no interest in the real estate at present? A. Nothing; only that they hold a contract, and the payment they made, they have an equity in it. Q. Do you know what interest they have in it? A. I could not say at present. I know-- I could not tell you at present. It would be impossible. If you will allow me, I can explain, possibly, so you can understand it. The fact of the matter is, they have no interest in it. Q. The improvements done by the investment company were done with the knowledge and consent of the improvement company? A. No, sir; they had nothing whatever to do with it. Q. Did they know of it? A. I suppose they knew we had bought the ground of them by contract. I expect they knew we were trying to boom the property, and they knew we were going to build. Q. Have their interests in this contract ever been closed out in any way,--the improvement company's interest under the contract? A. No, sir. Q. It just stands under contract still? A. Yes, sir. Q. You do not know how much the Plattsmouth Investment Company paid under that contract? A. I could not say exactly; no, sir. Q. Was the contract made a matter of record between the Plattsmouth Investment Company and the Plattsmouth Improvement Company? A. Yes, sir. Yes, sir; and it is in the record in the office of the company. Of course, we can record a contract, as I understand it, without being acknowledged. Q. I mean of record in the county clerk's office? A. No, sir. Question by the Court: Do you know about how much they paid the investment [improvement?] company on that contract? A. It seems to me it is in the neighborhood of $1,100. I don't know exactly. The company has never paid any interest to the Plattsmouth Land & Improvement Company. They have never been able to, because the stockholders refused to pay. Q. What was the contract price? A. I don't know that without referring to the contract.” From this testimony it seems established that, at the time when the contract was made to build the Park House, the Plattsmouth Investment Company held a written executory contract for the purchase of the real property upon which the Park House was to be built; that it had possession and control of said real property, and has paid on its purchase price about the sum of $1,100; though at what date is entirely left to conjecture. It seems probable, also, that the Plattsmouth Land & Improvement Company had knowledge of the design of the investment company to boom the property, and with that view the Park House was to be built. Whether or not the Plattsmouth Land & Improvement Company was more directly interested than above in the promotion of this enterprise is the question essential to the determination of this appeal. The foregoing evidence of Dr. Hertzman was presented, with a promise to define his relation to the two Plattsmouth companies above referred to, which, as it will now appear, is a matter of some little difficulty. Testifying, he said, in substance, that in July, 1887, he was a stockholder in the Plattsmouth Investment Company; was not a stockholder in the Plattsmouth Land & Improvement Company; was at that time its secretary, and so continues until this day. When shown a letter, (which is not found in the bill of exceptions,) and asked what meeting he referred to in it, Dr. Hertzman said: “I have referred to the meeting of the Plattsmouth Investment Company, of which I was elected secretary after Mr. Gratton resigned; not the Plattsmouth Land & Improvement Company, but the Plattsmouth Investment Company. That is signed by me personally, and not as secretary.” When this resignation of Gratton and induction of Dr. Hertzman into the vacant office took place there is no means of determining. It would seem, however, that the doctor was, for a portion of the time covered by the history of this case, secretary of both these Plattsmouth companies, as well as a stockholder in the investment company.

Another personage who conspicuously figures is Dr. Samuel D. Mercer, who, in July, 1887, when the contract was made with Pickens for the erection of the Park House, was president of the Plattsmouth Land & Improvement Company, and was originally its treasurer. The contract which Mr. Pickens entered into for the erection of the Park House was in writing,...