Potter v. Cline

• Decision Date: 29 August 1974
• Docket Number: No. 2--1172A117,2--1172A117
• Citation: 316 N.E.2d 422,161 Ind.App. 349
• Parties: J. LeRoy POTTER et al., Appellants, v. James CLINE, dba Cline's Electric Service, Appellee.
• Court: Indiana Appellate Court

Page 422

316 N.E.2d 422

161 Ind.App. 349

J. LeRoy POTTER et al., Appellants, v. James CLINE, dba Cline's Electric Service, Appellee.

No. 2--1172A117.

Court of Appeals of Indiana, Second District.

Aug. 29, 1974.

Richard H. Crokin, Indianapolis, for appellants.

Schlosser, White & Schlosser, Chalmer Schlosser, Jr., Indianapolis, for appellee.

WHITE, Judge.

This is an appeal from a judgment that appellee James Cline (Cline), an electrical contractor, have and recover the sum of $3,934.50 and costs from all three appellants, j. LeRoy Potter and Robert F. Potter (the Potters), and Potter Material Service, Inc. (Corporation), and that certain described real estate be sold (by virtue of a mechanic's lien) to satisfy the judgment. Because there is no evidence concerning the Potters except that their names appear on Cline's notice of intention to hold a mechanic's lien, we reverse as to them. As to the Corporation, we affirm, subject to certain modifications.

Refusing to weigh the evidence or to resolve questions of credibility and looking only to the evidence and reasonable inferences therefrom which support the trial court's judgment, we find the facts established by the evidence to be these: ¹

The Corporation, at all times pertinent to Cline's claim, operated a building materials business in a building or 'plant' located at 3515 East Washington Street, Indianapolis, Marion County, Indiana, on land described in the trial court's judgment and in the notice of intention to hold mechanic's lien filed by Cline in the Marion County Recorder's office on December 4, 1969. The Corporation was, at all such times, an owner of that real estate within the meaning of the mechanic's lien statute ² but there is no evidence of the precise nature of its estate or interest therein. ³

At all times pertinent Cline was a duly licensed electrician engaged in business in Indianapolis as an electrical contractor. In 1968 Cline commenced to do electrical work for the Corporation. His first job was to 'rework a warehouse' for $195.00 and he was paid in full. His second job was to wire an office building for the superintendent of the plant for a contract price of $568.00 plus an extra of Twenty-four Dollars ($24.00) for a total of $592.00. That job was finished and Corporation was billed for it on or before December 18, 1968, but Cline was never paid for it.

In February of 1969 Cline was employed by Corporation to wire a conveyor system, or 'batching' system, under an oral agreement that he would be paid for labor at the rate of.$7.00 per man hour, and for materials rials at their cost to him plus twenty per cent. On or about March 6, 1969, he had substantially completed the rough-in work which had consumed 120 man hours of his own and his employees' labor, amounting to $840.00. By that time he had also purchased materials which, at cost plus twenty per cent, amount to $843.00. All of those materials had been delivered to the plant and installed except a 250 foot roll of '16--2 shielded cable'. This was a special type of wire suggested by the manufacturer of the conveyor system to which to hang the tilt and probe switches. Cline's charge for that item was $58.00. At that time Cline had done substantially all the work he could do toward wiring the conveyors until guides for the tilt and probe switches were welded and installed. This was work Cline could not do, but which could have been done by qualified personel in about a week.

At that time Cline submitted his itemized statement for labor and materials totaling $1,683.00 and left the plant awaiting a call to return and complete his wiring job after the tilt and probe switches were installed. He received no call until some nine months later when Mr. Ochstein, Corporation's vice-president, telephoned and asked him to return and complete the job. By that time two of Cline's three employees had left him and he had other work which prevented his immediate return. He offered to return and complete the job when he could get to it and also suggested another contractor, but Corporation wanted thw work done immediately. The vice-president asked Cline to bring in the material he had left. On December 1, 1969, Cline delivered to him the roll of 16--2 shielded cable and also tabs and prints for the conveyor. Corporation thereafter employed 'Cameron Electric' which completed wiring the conveyor. There is no evidence to rebut the presumption that the cable was installed in the conveyor system when the work was completed by Cameron Electric. Kendall Lumber & Coal Company, Inc. v. Roman et al. (1950), 120 Ind.App. 368, 376, 91 N.E.2d 187.

On December 4, 1969, Cline filed his notice of intention to hold a mechanic's lien directed to 'J. LeRoy Porter (sic) and Robert F. Porter (sic) (Owners), and Porter (sic) Material Services, Inc.' The amount claimed therein is $2,275.00 which is the total of the $592.00 job completed on or before December 18, 1968, and the uncompleted job which followed it for which Cline's billing was $1683.00.

There is no evidence concerning the Potters save and except the foregoing notice.

I.

On these facts the first question which arises is whether the notice was filed 'within sixty (60) days after performing such labor or furnishing such materials' as required by Ind.Ann.Stat. § 32--8--3--3 (Burns Code Ed., 1973) in order to perfect a mechanic's lien.

As to the $592.00 for labor performed and materials furnished on the job completed December 18, 1968, or earlier, there is no question but that the notice was too late. That work was performed, and those materials were furnished, under a separate contract. The two contracts cannot be tacked together so as to extend the time within which the notice may be filed, or to revive a right lost by lapse of time. Kendallville Lumber Co. v. Adams (1931), 93 Ind.App. 141, 150, 176 N.E. 555, 558; St. Joseph's College v. Morrison, Inc. (1973), Ind.App., 302 N.E.2d 865, 875, 39 Ind.Dec. 244, 259. The uncontradicted evidence is sufficient, however, to sustain a personal judgment against the Corporation in the principal sum of $592.00. (Interest and attorneys' fees are discussed infra.)

As to the conveyor wiring job the answer is not so simple.

Appellants contend that, because the wire delivered in December, 1969, had already been billed to the Corporation in March and no work had been done since that time, Cline's 'lien rights' expired in June and the delivery of the wire did not 'revive' those rights. Ellis v. Auch (1954), 124 Ind.App. 454, 460, 118 N.E.2d 809, 812, and Miller Monuments, Inc. v. Asbestos Insulating & Roofing Co., Inc. (1962) 134 Ind.App. 48, 55, 185 N.E.2d 533, 536, are cited and quoted.

Neither of those cases is of much help since the facts of neither are analogous to those at bar. In Ellis, supra, a written contract executed by the parties was the basis of the contractor's claim against the owner. The labor and materials called for by that contract were all furnished more than sixty days before the notice was filed. There was some evidence that some labor and materials were furnished within sixty days of the filing but no evidence that they were a part of the contract. A judgment for defendant on plaintiff's evidence was affirmed. In Miller Monuments, supra, the plaintiff had completed his contract in a good and workmanlike manner more than sixty days before the notice was filed. Defendant owner, however, contended it was not properly done and plaintiff did more work at defendant's request within the sixty day period. In holding that the notice was timely filed, the court said:

'The facts found by the court do not show that the later work was done gratutiously or by virtue of a new contract. Appellant is estopped by its conduct, as shown by the special findings, from claiming that the work under the subcontract was completed before the doing of the additional work, and the mechanic's lien was therefore timely filed.' (134 Ind.App. at 54, 185 N.E.2d at 536.)

The court also quoted a Massachusetts case ⁴ which had said:

"Work actually called for by the contract or continuing employment, performed in good faith with the intention of completing the job, . . . will permit the filing of the statement within sixty days after the doing of the last work." (Id, at 55, 185 N.E.2d at 536.) (Emphasis by Miller court.)

Appellants treat that quotation as the rationale of the Miller Monuments decision and argues that because Cline was not delivering the 16--2 cable with intent to complete the job it does not extend the time for filing the notice.

Cline's appellee's brief also relies on Miller Monuments, supra, and on W. P. Nelson Company v. Weyl (1919), 71 Ind.App. 674, 125 N.E. 466, to support his argument that Corporation is estopped to claim the benefit of 'its own delay in preparing the structure for finish wiring.' Both cases do speak of estoppel, but on facts quite different from those at bar. In both cases the work contracted for had been completed but the owner-defendant had insisted that further corrective work was necessary. It was their request for the further work which estopped them from contending that it was not a part of the contract.

The case at bar differs from the cases cited in that the work contracted for by Cline was never completed by Cline. Much of appellants' argument is premised on the contention that Cline defaulted on his contract to do all the wiring of the conveyor; that he 'quit and walked off the job'. But the evidence most favorable to Cline would not sustain such a finding. In fact not even the Corporation's evidence by its Vice-President Ochstein would sustain a finding that Cline quit when he left in March or April. Ochstein did not dispute Cline's testimony that he left the job in March or April of 1969 to await recall when others had done the work necessary to permit the final hook-up, nor, that the call to Cline to return and complete the job was not made until within sixty days...