Rosebud Lumber & Coal Co. v. Holms

• Court: Nebraska Supreme Court
• Writing for the Court: Heard before SIMMONS; MESSMORE
• Citation: Rosebud Lumber & Coal Co. v. Holms, 52 N.W.2d 313, 155 Neb. 459 (Neb. 1952)
• Decision Date: 07 March 1952
• Docket Number: No. 33104,33104
• Parties: ROSEBUD LUMBER & COAL CO. v. HOLMS et al.

Page 313

52 N.W.2d 313

155 Neb. 459

ROSEBUD LUMBER & COAL CO. v. HOLMS et al.

No. 33104.

Supreme Court of Nebraska.

March 7, 1952.

Rehearing Denied May 2, 1952.

See 53 N.W.2d 82.

Syllabus by the Court.

1. Mechanic's lien statutes are cumulative and remedial in nature requiring a liberal construction so as to effectuate their objects and purposes and protect all claimants within their scope as well as to promote substantial justice.

2. The object of the mechanic's lien law being to secure the claim of those who have contributed to the erection of a building, it should receive the most liberal construction to give full effect to its provisions.

3. A subcontractor who furnishes materials for a building, but whose contract was made with the contractor alone, can acquire a lien under the mechanic's lien law for such materials only as were delivered at the building for use therein, or were actually used in the construction thereof.

4. The lien is given not upon the ground that a contract was made by the owner with such subcontractor, but because the material so furnished was used in the erection of the building.

5. The sworn statement of a subcontractor for a mechanic's lien must contain a description of the premises on which the improvement was erected. Such a description is not insufficient if it renders the location of the property susceptible of ready ascertainment by the aid of extrinsic evidence.

6. As a general rule an overstatement of the amount due and sought to be recovered under a mechanic's lien does not, in the absence of a dishonest intention on the part of the claimant, invalidate the lien.

7. In determining whether or not the defendant's motion to dismiss at the conclusion of the plaintiff's case should be sustained the evidence will be considered by the court in the light most favorable to the plaintiff, controverted facts will be resolved in his favor, and he is entitled to the benefit of every inference that can be reasonably deduced therefrom.

8. In an equity suit, a motion to dismiss at the conclusion of the plaintiff's evidence affords a proper means of determining the sufficiency of the plaintiff's evidence to make a prima facie case. Where it appears that such dismissal of a plaintiff's cause of action was erroneous, the parties are entitled to be placed in the same position they were in before the error occurred, which requires the cause to be remanded for a new trial.

Heaton & Connors, Sidney, for appellant.

Kepler & Knicely and Martin & Davis, all of Sidney, for appellees.

Heard before SIMMONS, C. J., and MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

The plaintiff, Rosebud Lumber and Coal Company, a corporation, brought this action against Frank P. Holms and Louise Holms, his wife; Roy Knight and _____ Knight, his wife, first and real name unknown; and Guarantee Mutual Life Company, a corporation, defendants, in the district court for Cheyenne County to foreclose a mechanic's lien. There was no service of process upon the defendants Knight.

At the conclusion of the plaintiff's evidence the defendants moved the court to dismiss the plaintiff's petition. The court sustained this motion and dismissed the plaintiff's petition and the cross-petition of the defendant Guarantee Mutual Life Company. From the overruling of the plaintiff's motion for new trial the plaintiff appeals.

Plaintiff's petition alleged, insofar as necessary to consider here, that plaintiff, between December 12, 1949, and March 8, 1950, sold to the defendants Knight and Frank P. Holms and Louise Holms, husband and wife, certain building materials; that said materials were sold and delivered to be used, and in fact were used, in the construction of a dwelling house on the following described premises: Lot 45, Morrow's Addition to Sidney, Cheyenne County, Nebraska; and, at the times said materials were sold, defendants Holms were, and still are, the owners in fee of the above described premises. The itemized account of the materials furnished, the charges therefor, and the amount paid are set forth. The date of the filing of the mechanic's lien and affidavit are pleaded. In addition, the petition alleges that the defendant Guarantee Mutual Life Company claims a lien on the described premises by virtue of a real estate mortgage, and if such lien is valid, it is junior and inferior to the mechanic's lien of the plaintiff. Plaintiff prayed for foreclosure of its mechanic's lien, and that it be declared to be paramount to the mortgage lien of the Guarantee Mutual Life Company.

The defendant Guarantee Mutual Life Company, by answer denied generally the allegations of the plaintiff's petition not admitted, and affirmatively alleged by cross-petition that the defendants Holms made, executed, and delivered to this defendant their promissory note and mortgage to secure the note; specifically denied the validity and existence of the mechanic's lien which plaintiff seeks to foreclose; affirmatively pleaded that its mortgage be declared a first and paramount lien on the premises of the defendants Holms; and that in the event the court should determine that the mechanic's lien of the plaintiff is paramount to this defendant's mortgage lien, then an accounting be had as to the amount owing this defendant, and the property be sold to pay the liens against it. The prayer is in accordance with the cross-petition and for equitable relief.

The defendants Holms by answer denied generally the allegations of plaintiff's petition and the allegations of the defendant Guarantee Mutual Life Company's cross-petition.

The plaintiff's reply to the answer of defendants Holms is a general denial. The plaintiff's reply to the answer and cross-petition of the Guarantee Mutual Life Company admitted its corporate capacity, that it held a mortgage lien, denied that such lien was prior to plaintiff's lien, and generally denied allegations of the answer and cross-petition not admitted.

By stipulation the record shows that Frank P. Holms and Louise Holms, husband and wife, were the owners of Lot 45, Morrow's Addition to the city of Sidney, Cheyenne County, Nebraska, on or about December 12, 1949, and are still the owners of said real estate; and that plaintiff filed an affidavit and mechanic's lien with an itemized list of materials alleged to have been furnished by it for the erection of a building on the above described lot on April 26, 1950, at 4 p. m. It also was stipulated, on April 3, 1950, the defendants Holms made, executed, and delivered to the Guarantee Mutual Life Company their promissory note in the amount of $8,700 with interest at the rate of 4 1/2 percent per annum on the unpaid balance until paid, and on the same date, to secure the payment of the note, defendants Holms executed and delivered to the Guarantee Mutual Life Company their mortgage deed filed of record April 12, 1950. There is due the Guarantee Mutual Life Company from defendants Holms $8,383.24.

R. H. Coe testified that he is the president of the Rosebud Lumber and Coal Company, a corporation located at Winner, South Dakota, engaged in the retail sale of lumber and coal. He had business transactions with Roy Knight who posed as a contractor and builder. Roy Knight had practically finished a motel at Winner, contemplated building a mortuary in Winner, and 'The man that was there said that he had three units to build at Sidney, Nebraska.'

George T. Carter testified that in December 1949, he was a construction foreman for the Roy Knight Construction Company which consisted of Roy Knight and his wife Cecelia. He built a house for Frank Holms which was located at 1145 Sixth Avenue, in Sidney. He was asked: 'That is the property that is in controversy here?' He answered: 'I think so; yes, sir.' He acted as foreman of the job from the time the basement was excavated in November 1949, until the outside work and drives were finished in the latter part of April 1950. He ordered the materials by telephone from Roy Knight who resided in Winner. This was dimensional material. Four truckloads of such material were delivered to the Frank Holms lot, 1145 Sixth Avenue, and unloaded on the lot. This material was used in the construction of the house. Some of the materials which comprised the third load delivered were rejected by him. This consisted of knocked-down windows of the old type which would not fit. On the list he sent to Roy Knight he requested weather-stripped units. The rejected materials were reloaded on one of Knight's trucks and sent back to Winner. After that, on the fourth load, replacements were delivered by Knight's truck. There was one unit short on this load.

Alfred C. Struss testified that he was employed as a carpenter foreman for the Roy Knight Construction Company located at Winner, South Dakota. He was foreman of the building of the motel, and delivered lumber wherever it was needed on other jobs. He delivered three loads of material which he obtained from the Rosebud Lumber and Coal Company to the Frank Holms house in Sidney. He loaded the truck himself and drove it to Sidney. The deliveries were made in January and February 1950, his lost trip being in February. The dimensional lumber was segregated from the other lumber in the Rosebud lumberyard and set apart. The first load delivered by him consisted of dimensional lumber precut by him on one of Roy Knight's jobs. It was loaded on the truck again after being cut, and taken to Sidney to the Frank Holms residence. He did not know the street number or the lot number of the Frank Holms residence. The cement blocks had just been laid in the basement when he delivered the first load. He unloaded this material at the east side of the basement. The second load he handled consisted of shingles, shakes, flooring, and also some sheeting. He had some help in loading this material at Winner, and it was delivered to the Frank Holms residence in Sidney. The third load which he...