Potter Manufacturing Co. v. A. B. Meyer & Co.
| Decision Date | 07 January 1909 |
| Docket Number | 21,385 |
| Citation | 86 N.E. 837,171 Ind. 513 |
| Court | Indiana Supreme Court |
| Parties | Potter Manufacturing Company v. A. B. Meyer & Company et al |
From Superior Court of Marion County (68,594); Vinson Carter Judge.
Cross-complaint by the Potter Manufacturing Company against A. B. Meyer & Company and others. From a judgment for defendants cross-complainant appeals. Transferred from Appellate Court under § 1394 Burns 1908, cl. 2, Acts 1901, p. 565 § 10.
Affirmed.
John S. Berryhill, for appellant.
Charles Martindale, for appellees.
This suit was brought to foreclose a mechanic's lien upon the property of the Indianapolis Light & Heat Company, a corporation which had been formed by consolidation of the Marion County Hot Water Heating Company, and the Indianapolis Light & Power Company. Appellant filed a cross-complaint in the suit, alleging that the Marion County Hot Water Heating Company had contracted with J. J. Smith & Company for the construction of a certain sewer and drain, and, for the purpose of executing said contract, J. J. Smith and J. J. Smith & Company purchased and leased from appellant certain material and machinery, and hired appellant to perform certain labor, to be used in the construction of said sewer and drain, as shown by bills of particulars filed; that said materials and machinery were used, and said labor was performed by appellant, in the erection and construction of said sewer and drain; that J. J. Smith & Company failed financially and became insolvent; that notice of an intention to hold a lien was duly filed, and that appellant's claim was unpaid. The cross-complaint was answered by a general denial. A trial resulted in a finding and judgment against appellant.
Appellant's motion for a new trial, on the ground that the decision of the court was contrary to law, was overruled, and this ruling is assigned as error.
It appears from the evidence that J. J. Smith & Company agreed to construct this sewer and drain, and "to furnish all necessary tools and materials and employ the necessary labor properly and promptly to execute said work." A part of the claim for which appellant seeks to enforce a lien is the rental price of a "Potter trench machine" for two months and twenty-three days at the agreed rate of $ 150 per month. This machine was described in the contract as follows: "Said trench machine to consist of 272 feet of steel trestle, one engine car, one tail block, one double tub carriage, twelve two-thirds yard buckets, 700 feet of twenty-five-pound "T" rail, fish plates and bolts, 1,200 feet of one-half-inch best crucible steel wire cable, nineteen wires to the strand, sheaves, axles, shafts, bolts, wrenches, oil cans and all necessary parts for running machine."
J. J. Smith & Company were carefully to take down and return the machine to appellant's yard when through with it. The residue of the account against J. J. Smith & Company amounting to $ 276.75, for which a lien is asserted, was for a telegram, braces, brace screws and washers, sheeting puller, brick buckets, stringer hooks, sharpening picks, blacksmith work and the use of a private switch in unloading cars. This part of appellant's claim, aside from the charge for a telegram and the use of its private track, was for the purchase price of and for repairs to tools and implements used in the construction of the work, and upon the completion thereof carried away as the personal property of the contractor.
The concrete question for decision may be concisely stated in the language of appellee's counsel as follows:
Section one of the statute upon which the alleged lien is founded reads as follows: "That contractors, subcontractors, mechanics, journeymen, laborers and all persons performing labor or furnishing material or machinery for the erection, altering, repairing or removing any house, mill, manufactory or other building, bridge, reservoir, system of water-works or other structure, or for constructing, altering or repairing or removing of any sidewalk, walk, stile, well, drain, sewer or cistern, may have a lien separately or jointly upon the house, mill, manufactory or other building, bridge, reservoir, system of water-works or other structure, sidewalk, walk, stile, well, drain, sewer or cistern which they may have erected, altered, repaired or removed or for which they may have furnished material or machinery of any description, and on the interest of the owner of the lot or parcel of land on which it stands or with which it is connected to the extent of the value of any labor done, material furnished or either; and all claims for wages for mechanics and laborers employed in or about any shop, mill, wareroom, storeroom, manufactory or structure, bridge, reservoir, system of waterworks or other structure, sidewalk, walk, stile, well, drain, sewer or cistern, shall be a first lien upon all the machinery, tools, stock of material, work finished or unfinished located in or about such shop, mill, wareroom, storeroom, manufactory or other building; bridge, reservoir, system of waterworks or other structure, sidewalk, walk, stile, well, drain, sewer or cistern or used in the business thereof; and should the person, firm, or corporation be in failing circumstances the above mentioned claim shall be preferred debts, whether claim or notice of lien has been filed or not." § 8295 Burns 1908, Acts 1899, p. 569.
This statute provides that a mechanic's lien may be acquired by persons (1) who perform labor, or (2) who furnish material or machinery for the purpose of erecting, altering, repairing or removing certain enumerated structures. The right to such lien is purely statutory, and in no respect founded on the common law. A claimant to such a lien must in the first instance bring himself clearly within the terms of the statute; but, when his right has been established, the law will be liberally interpreted toward accomplishing the purposes of its enactment.
A lien is authorized in favor of a laborer to the extent of the value of the work done by him. This trench machine, owned by appellant, did not work automatically, but was operated by men in the employ and under direction of the lessee of the machine, J. J. Smith & Company. There could be no question that the contractor, J. J. Smith & Company, might have acquired a lien to the extent of the value of the work done, including that done by this labor-saving machine. Appellant, however, did not perform, or in any manner engage to perform, any labor upon the structure to be erected. Its claim is not for the value of work actually done, but compensation at an agreed price for a specified time, as the rental value of the machine, without...
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