Potter Mfg. Co. v. A.B. Meyer & Co.

• Citation: 171 Ind. 513,86 N.E. 837
• Decision Date: 07 January 1909
• Docket Number: No. 21,385.,21,385.
• Court: Indiana Supreme Court
• Parties: POTTER MFG. CO. v. A. B. MEYER & CO. et al.

171 Ind. 513

86 N.E. 837

POTTER MFG. CO.

v.A. B. MEYER & CO. et al.

No. 21,385.

Supreme Court of Indiana.

Jan. 7, 1909.

Appeal from Superior Court, Marion County; Vinson Carter, Judge.

Action by the Potter Manufacturing Company as cross-complainant against A. B. Meyer & Co. and others. There was judgment for defendants, and cross-complainant appealed to the Appellate Court. Transferred from the Appellate Court under clause 2, § 1394, Burns' Ann. St. 1908. Affirmed.

See, also, 85 N. E. 725, 1048.

John S. Berryhill, for appellant. McCarty & Rassman and Charles Martindale, for appellees.

MONTGOMERY, J.

This action 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 action, alleging that the Marion County Hot Water Heating Company had contracted with J. J. Smith & Co. for the construction of a certain sewer and drain, and, for the purpose of executing said contract, J. J. Smith and J. J. Smith & Co. purchased and leased of 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, on the erection and construction of said sewer and drain. It was further averred that J. J. Smith & Co. failed financially and became insolvent, that notice of an intention to hold a lien was duly filed, and that appellant's claim was still 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 & Co. agreed to construct this sewer and drain, and “to furnish all necessary tools and materials and employ the necessary labor to properly and promptly execute the said work.” A part of the claim for which appellant seeks to enforce a lien is the rental price of one “Potter trench machine” for 2 months and 23 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, 12 2/3 yard buckets, 700 feet of 25-pound Tee rail, fish plates and bolts, 1,200 feet of 1/2 inch best crucible steel wire cable, 19 wires to the strand, sheaves, axles, shafts, bolts, wrenches, oil cans, and all necessary parts for running machine.” Smith & Co. were carefully to take down and return the machine to appellant's yard when through with its use. The residue of the account against Smith & Co., 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:

“(1) Are tools sold or leased to a contractor or repairs on tools and machinery used by a contractor in the erection of a structure, and which are at the conclusion of the contract carried away by the contractor as his personal property, or returned to the bailor, and in no way incorporated into the structure, the subject of a mechanic's lien?

“(2) Is a charge for the privilege of using a railroad switch from which to unload materials to be transported to a structure, the subject of a mechanic's lien?”

Section 1 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 waterworks 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 waterworks or other structure, sidewalk, walk, stile, well, drain, sewer or cistern which may have been 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 machinery, tools, stock of materials, 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.” Section 8295, Burns' Ann. St. 1908. 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 erection, altering, repairing, or removal of 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 appellan...