Sandiford v. Shideler

• Decision Date: 17 April 1901
• Citation: 26 Ind.App. 496,60 N.E. 168
• Parties: SANDIFORD et al. v. SHIDELER.
• Court: Indiana Appellate Court

26 Ind.App. 496

60 N.E. 168

SANDIFORD et al.

v.SHIDELER.

Appellate Court of Indiana.

April 17, 1901.

Appeal from superior court, Marion county; Vinson Carter, Judge.

Action on a bond by David B. Shideler against Joshua C. Sandiford and others. From a judgment in favor of the plaintiff and an order overruling a motion for a new trial, defendants appeal. Reversed.

Herod & Herod, for appellants. Chas. A. Dryer, for appellee.

COMSTOCK, J.

Appellee brought this action upon a bond given to secure the faithful performance of a building contract entered into between appellant Sandiford and appellee, Shideler, by which Sandiford agreed to construct a residence and barn for Shideler. A trial resulted in a judgment in favor of the appellee against the appellant, with a finding that Hahn was surety upon the bond. The assignment of errors questions the sufficiency of the complaint and the action of the court in overruling appellant's motion for a new trial. The proposition of counsel for appellants is that: “It is not sufficient to allege merely that notices of intention to hold mechanics' liens were filed, nor is it sufficient to allege that the contractor failed to pay material men. In order to make the complaint good, facts must be stated which show notices to have been filed according to the statute.” It is claimed that the complaint contains no allegation that appellee paid “money to material men under compulsion, nor that he paid valid liens.” The contract and bond are made parts of the complaint. Article 1 of the contract provides that the contractor shall furnish all material and perform all work. Article 9 contains the following: “If at any time there shall be evidence of any lien or claim for which, if established, the owner or said premises might become liable, and which is chargeable to the contractor, the owner shall have the right to retain out of any payment then due or thereafter to become due an amount sufficient to completely indemnify him against such lien or claim. Should there prove to be any such lien after all payments are made, the contractor shall refund to the owner all moneys that the latter may be compelled to pay in discharging any lien on said premises made obligatory in consequence of the contractor's default.” The complaint avers: “That a large number of mechanics who had labored upon said house and furnished materials therefor in a contract so to do with said Sandiford filed mechanics' liens against said...