Rader v. A.J. Barrett Co.

• Decision Date: 13 May 1915
• Docket Number: No. 8610.,8610.
• Citation: 108 N.E. 883,59 Ind.App. 27
• Parties: RADER et al. v. A. J. BARRETT CO. et al.
• Court: Indiana Appellate Court

59 Ind.App. 27

108 N.E. 883

RADER et al.

v.A. J. BARRETT CO. et al.

No. 8610.

Appellate Court of Indiana, Division No. 2.

May 13, 1915.

Appeal from Circuit Court, Fulton County; Harry Bernetha, Judge.

Action to quiet title by Frank D. Rader and another against the A. J. Barrett Company and others, who cross-complained. From a judgment quieting title, but establishing mechanics' liens for the benefit of cross-complainants, plaintiffs appeal. Affirmed.

Arthur Metzler, of Rochester, for appellants. Holman, Stephenson & Bryant and O. F. Montgomery, all of Rochester, for appellees.

MORAN, J.

Appellant Frank D. Rader brought an action to quiet the title to a small tract of real estate located upon the shore of Lake Manitou, in Fulton county, Ind., upon which was located a hotel and dwelling house. The title was quieted as against all parties to the action, except appellees, who filed cross-complaints for the foreclosure of mechanics' liens for material furnished and labor performed in the repair of the hotel building. A decree of foreclosure was rendered in favor of appellees, from which appellants, Frank D. Rader and his wife, Hattie M. Rader,have appealed. In addition to appellants, Frank D. Rader and Hattie M. Rader, Carey L. and Ina T. Smith were made parties to appellees' cross-complaints. The cross-complaints of appellees A. J. Barrett Company and Stilla P. Bailey are for material furnished. That of appellee Charles Alspach is for labor performed in the repair of the hotel building. Notices of the intention to hold a mechanic's lien upon the real estate described in the complaint and in the cross-complaints, respectively, were filed in the recorder's office of Fulton county, Ind., within the time required by law, copies of which notices are made a part of the cross-complaints.

It is alleged, among other things, in substance, in the cross-complaints, that the indebtedness sought to be recovered was for building material furnished to be used, and was used, in making additions to the hotel and dwelling, and that the labor was performed thereon; and at the time the material was furnished and labor performed appellant Frank D. Rader was the owner of the real estate, but had entered into a contract to sell the same to Carey L. Smith. Upon the overruling of demurrers by appellants, Frank D. and Hattie M. Rader, to the cross-complaints, they answered each cross-complaint in two paragraphs; the first being a general denial. The second is based upon a written contract which alleges, in substance that on May 25, 1909, appellants entered into a written contract with Carey L. and Ina T. Smith for the sale of the real estate in question, and in consideration appellants were to receive in exchange certain real estate in the city of Indianapolis. Carey L. and Ina T. Smith were to discharge certain liens against the Indianapolis real estate, and to carry out certain other obligations set forth in the contract, and, upon failure to comply with certain conditions in the contract within six months from the date of entering into the same, Carey L. and Ina T. Smith were to forfeit their rights under the contract. They failed to carry out the contract, and in July, 1909, surrendered up the possession of the hotel property. At no time did Carey L. and Ina T. Smith have any interest in the hotel property; appellants did not contract with cross-complainants for the material furnished and labor performed, nor did they authorize the furnishing of the same, and, if the material was furnished and the labor performed, it was at the instance and request of Carey L. and Ina T. Smith.

A demurrer by appellees to the second paragraph of answer was sustained.

The errors relied upon for reversal are: (1) The court erred in overruling the demurrer of appellants to the cross-complaints of appellees; (2) the court erred in sustaining demurrers of appellees A. J. Barrett Company, Stilla P. Bailey, and Charles Alspach to the second paragraph of answer of appellants to the amended cross-complaint of appellees; (3) the court erred in overruling appellants' motion for a new trial.

The infirmity urged against the cross-complaints is that they do not show the ownership of the property against which the liens were sought to be enforced, and that it is essential that the pleading disclose by a proper averment the ownership. This contention is supported by authority. Adams v. Buhler, 116 Ind. 100, 18 N. E. 269;Littler v. Friend, 167 Ind. 36, 78 N. E. 238.

[1] In the cross-complaint of appellee A. J. Barrett Company there is an averment that Frank D. Rader was the owner of the legal title of the real estate upon which the lien was attempted to be foreclosed. The cross-complaints on the part of the other appellees plead the facts as to the execution of the contract between appellants and Carey L. Smith and wife in reference to the sale of the real estate in question. While there is no direct averment that appellant Frank D. Rader was the owner of the real estate, there are sufficient facts pleaded in connection with the execution of the contract between appellants and Carey L. Smith and wife to disclose that Frank D. Rader was the holder of the legal title to the real estate at the time the material was furnished and the labor performed, and at the time of the filing of the cross-complaints. Under the rule announced in Domestic Block Coal Co. v. De Armey, 179 Ind. 592, 100 N. E. 675, 102 N. E. 99, each of the cross-complaints was sufficient to withstand a demurrer.

[2] Appellants' second paragraph of answer to appellees' cross-complaints was merely a denial of the authority of appellees to furnish the material and perform the labor as sued for in the cross-complaints. Appellees were bound to prove this fact in order to recover. And, further, all the evidence that could have been admitted under this paragraph of answer was admissible under the answer of general denial. The court did not err in sustaining appellees' demurrer to this paragraph of answer. Ripley v. Lemcke, 43 Ind. App. 336, 87 N. E. 237;Craig v. Frazier, 127 Ind. 286, 26 N. E. 842.

[3][4] The sufficiency of the evidence to sustain the decision of the court as presented by the motion for a new trial is, in our judgment, the most serious question raised. Two of appellees furnished material for the hotel building, and one of appellees performed labor in repairing the same. During the time of the furnishing of the material and performing of the labor Carey L. Smith and wife held a contract of purchase for the real estate in...