Ryndak v. Seawell
| Decision Date | 04 March 1904 |
| Citation | 76 P. 170,13 Okla. 737,1904 OK 42 |
| Parties | RYNDAK v. SEAWELL. |
| Court | Oklahoma Supreme Court |
Syllabus for the Court.
1. A petition in an action to foreclose a mechanic's lien for material furnished, that does not contain an allegation that the material was actually used in the construction of the building, is defective.
2. But such defect is not challenged by a demurrer to the petition on the ground that the petition does not state facts sufficient to constitute a cause of action.
3. Where such petition is defective, in that it does not allege that the material was actually used in the building, and the defect is not challenged before or at the trial, and evidence is introduced without objection showing that the material was actually used in the construction of the building the defect in the petition will be deemed to have been waived.
4. Where a demurrer and an answer are filed at the same time the answer being filed before a decision is had upon the demurrer, and the petition in the case contains but one count or cause of action, the answer will be held to have superseded the demurrer, and the trial should proceed as though no demurrer had been filed.
5. Where M. enters into a contract with R., agreeing to furnish all material and construct a building for R., and S., a materialman, having knowledge of the contract of M., makes a contract in relation thereto with M. to furnish the material for such building, with the understanding that the material is to be used by M. in the construction of the building for R., S. thereby becomes a subcontractor, within the meaning of the mechanic's lien law, and, if the material is actually used in the construction of the building, S. is entitled to a mechanic's lien as a subcontractor.
6. Where M. enters into a contract with R. to furnish all material and construct a building for R., and S., as subcontractor, enters into a contract with M. to furnish the material for such building, and afterward, because of a misunderstanding, M. and R. agree to cancel their contract in which agreement of cancellation R. agrees to release M from all obligations arising out of the original contract and R. agrees to pay all claims for material and labor then outstanding, and R. afterwards proceeds with the construction of said building to its completion, S. furnishing the remainder of the material necessary therefor, and all of the material furnished is actually used in the construction of the building, S. is entitled to a mechanic's lien for the material furnished under section 620, Civ. Code 1903, as a principal contractor with the owner, and he is not required to serve the notice of the filing of such lien provided for by section 621.
Error from District Court, Kiowa County; before Justice John H. Burford.
Action by Wiley P. Seawell against Felix J. Ryndak. Judgment for plaintiff. Defendant brings error. Affirmed.
William Matkin, a contractor and builder of Hobart, Kiowa county, entered into a contract with Felix J. Ryndak to construct for him a frame building. Wiley P. Seawell, a lumber dealer, having knowledge of the contract between Matkin and Ryndak, and with the view that the lumber was to be used in the building of Ryndak to be constructed by Matkin, contracted with Matkin to furnish the material therefor. A large portion of the material necessary was furnished under such contract, and was used in the construction of the building. However, before the building was finished, Ryndak became dissatisfied with the contractor, Matkin, and solicited Seawell to use his influence with Matkin to cancel and terminate the contract. This Seawell agreed to do, under the condition, as he claimed, that Ryndak should pay him for the material then furnished. Seawell succeeded in his undertaking, and on September 3, 1901, the contract between Matkin and Ryndak was canceled, the parties at that time entering into a written agreement which provided that the contract should be terminated, Ryndak should be given possession of the building, that he should complete the same, that he should pay all claims for material and labor then outstanding, and that both Matkin and Ryndak should be released and discharged from any and all claims due from one to the other growing out of the contract. This written agreement was unknown to Seawell until after the commencement of the case and just before the trial. After the termination of the contract, Ryndak completed the building, and purchased of Seawell the remainder of the lumber necessary for its construction. Ryndak failing to pay for the lumber so purchased, Seawell filed a statement for a mechanic's lien, and afterwards commenced this action in the district court of Kiowa county, to recover the sum of $832.01 for the lumber sold to Matkin, and $161.40 for lumber sold directly to Ryndak, and for the foreclosure of the mechanic's lien. There was but one count in the plaintiff's petition, the two items being pleaded as one cause of action. On December 4, 1901, the defendant filed both a demurrer and an answer to the plaintiff's petition, the demurrer being upon these grounds: First, that there was a defect of parties defendant; second, that there were several causes of action improperly joined; third, that the petition did not state facts sufficient to constitute a cause of action. The answer runs to the entire petition. The demurrer was presented to the court and overruled on April 30, 1902. On the 3d day of May following the defendant filed an amended answer, in which there was a general denial, except as to matters specially admitted, then an admission of the contract between Ryndak and Matkin, and an allegation that subsequently thereto Matkin had abandoned the building and refused to perform the contract, and that after abandoning the contract Matkin had released Ryndak from the conditions thereof. Following this is an admission of indebtedness in the sum of $161.40, for the material which it is claimed was furnished directly by Seawell to Ryndak. In the reply plaintiff alleges that subsequent to the making of the contract Ryndak released Matkin therefrom without the knowledge or consent of the plaintiff; that Ryndak had agreed with Matkin to assume and pay all outstanding bills for material used in the construction of the building; and that the fact of such release was not known to the plaintiff until after the commencement of the action. Upon the pleadings thus framed the cause was tried by the court and jury, which trial resulted in a verdict for the plaintiff in the sum of $993.40. A motion for a new trial was filed and overruled. Judgment was rendered upon the verdict, also sustaining the mechanic's lien and ordering the same foreclosed, from which judgment the defendant Ryndak appeals to this court. The above is a statement of the main facts. Such other facts as are necessary to be shown appear in the opinion.
Shartel, Keaton & Wells, for plaintiff in error.
Rummons & Brown, for defendant in error.
PANCOAST, J. (after stating the facts).
Numerous objections were made in the court below both to the sufficiency of the pleadings and to the introduction of evidence. All contentions, however, are abandoned in this court save three; the first of which is that the demurrer to the...
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