Shearer v. Wilder

• Decision Date: 11 January 1896
• Docket Number: 7828
• Citation: 43 P. 224,56 Kan. 252
• Parties: JOHN D. SHEARER et al. v. EDWARD WILDER et al
• Court: Kansas Supreme Court

43 P. 224

56 Kan. 252

JOHN D. SHEARER et al. v. EDWARD WILDER et al

No. 7828

Supreme Court of Kansas

January 11, 1896

[Copyrighted Material Omitted]

Error from Shawnee Circuit Court.

JOHN D SHEARER brought an action to recover for labor performed in the construction of two dwelling-houses upon property the title of which was in Edward Wilder. Wilder and several other persons who were contractors and lien-claimants were made parties defendant, each of whom set forth his claim in appropriate pleadings. A trial was had before the circuit court of Shawnee county without a jury, and upon the testimony produced the following findings of fact and conclusions of law were made:

"1. On the 16th day of July, 1889, Edward Wilder, being the owner in fee simple of an addition to the city of Topeka, and of the lots described in plaintiff's petition, entered into a contract with one S.W. McCann, a copy of which said contract is attached to Wilder's answer in this case which is made a part of this finding of fact, to wit:

'This contract, made in duplicate this 16th day of July, 1889 between S.W. McCann and E. Wilder, both of Topeka, Kan.,

'WITNESSETH, That, in consideration of the agreement of the said Wilder hereinafter specified, the said McCann hereby agrees to construct upon lots in Wilder's addition to the city of Topeka, to be selected by the parties hereto, two houses to cost not less than $ 2,500, nor more than $ 3,000 each, of general design to be approved by said Wilder and according to plans and elevations agreed upon and marked E. W., and upon completion of said houses and upon payment of the amount hereinafter stipulated, to be paid by said Wilder, said houses are to be clear and free from any mechanics' or other liens.

'The said Wilder agrees, for the sake of securing said erections of said houses in his addition, to furnish and pay toward the cost of said houses the proportion of $ 1,000 for a house costing $ 2,600, said payment to be made by him to said McCann upon the completion of said house or houses, and only upon condition that at the time of said payment said house or houses are free and clear of any mechanics' or other liens, or any liabilities whatever for labor or material; and upon completion of said houses, free and clear as above, the said Wilder is to make a good and sufficient deed, general warranty, to said McCann or his assignee, and to take from said McCann, or his assignee, a mortgage for the amount of money advanced and paid by the said Wilder as above toward the cost of said house or houses, and for the listed value of said lots at $ 500 per lot, or $ 1,000 on each house, said mortgage or mortgages to run for five years at 8 per cent. interest, payable semiannually; and at the election of said Wilder shall be made either in one mortgage to cover cash advanced and the price of the lots, or in a first mortgage for the cash and a second mortgage for the price of the lots.

'In witness whereof, We have hereunto set our hands, the day and year above written. S.W. MCCANN, 1116 Tyler street.

E. WILDER.'

"2. On the said date, July 16, 1889, the said Wilder and McCann agreed upon the plans and elevations referred to in said contract, and marked the same 'E. W.,' and at the same time agreed upon specifications in writing, in pursuance of which the houses agreed to be built in said contract were to be built.

"3. About the same time the said Wilder and McCann selected as the lots upon which said houses were to be built lots numbered 481, 483, 485, 487, on Logan street, in Wilder's addition to the city of Topeka, Shawnee county, Kansas.

"4. That thereafter, on about the 17th day of July, 1889; the said defendant Cyrus Goddard agreed with the said S.W. McCann to build said houses upon said lots in accordance with the said plans, elevations, and specifications, at an estimated cost of about $ 2,000, or about $ 1,000 per house.

"5. That thereafter, on or about the 18th day of July, 1889, the said Goddard, in pursuance of his agreement with said McCann, commenced the construction of said houses, and completed the same on the 28th day of September, 1889.

"6. That said Goddard built said two houses in accordance with plans, elevations and specifications therefor, as the same were agreed upon by Wilder and McCann.

"7. That Goddard purchased materials to be used and which were used in the construction of said houses, and employed men to perform labor upon, in and about the same, as appears from exhibit 'A,' attached to his lien statement herein, and as will more fully appear from the petition of the plaintiff and cross-petitions of the other defendants herein.

"8. That there is due and owing to said Goddard under his agreement with said McCann for building said two houses upon said lots the sum of $ 2,154.27, with interest thereon from September 28, 1889, and that said two houses are of the value of $ 2,154.27.

"9. That there is due to the following-named persons the sum set opposite the name of each for work and material furnished by such persons in the erection of the buildings aforesaid as subcontractors with said Goddard, to wit: John D. Shearer, $ 59.20; J. W. Stout & Co., $ 105.15; Owen McKernan and J. T. Hampton, $ 153.40; J. Thomas, $ 927.35; Frank Hamm, $ 148.18; John Billodeau, $ 89.07; A. Boies, $ 66.40; H. F. King, $ 114.35; Cynthia Robbins, as administratrix, $ 36.90; John Speer, $ 198.90; Cyrus Goddard, $ 2,384.04, less $ 1,898.80, due subcontractors and material men.

"10. That on or about the said 29th day of September, 1889, the said Wilder and McCann entered into and executed the writing which is attached to the amended lien statement of the said Goddard, filed with his amended answer and cross-petition herein, and is marked 'Exhibit C,' and said writing is made a part of this finding of fact, to wit:

'This instrument, made this day of September, 1889, between S.W. McCann, party of the first part, and Edward Wilder, party of the second part, both of Topeka,

'WITNESSETH, That, whereas, heretofore, on the 16th day of July, 1889, a contract was entered into between said parties concerning certain lots therein mentioned, and a conveyance of the same; and

'WHEREAS, The said S.W. McCann finds himself unable to fully comply with the terms and conditions of said contract and to carry out the same; and

'WHEREAS, The said S.W. McCann desires to be released from the obligations in said contract and to release said Edward Wilder from the obligations therein to said S.W. McCann or assigns:

'Now, therefore, It is hereby agreed and understood by the parties that the said contract heretofore mentioned shall be annulled and abrogated, and that the said Edward Wilder shall wholly be released and discharged from the obligations contained in said contract toward said McCann or assigns, or from any liability therein, and from the obligations of making payments in said contract to the said S.W. McCann, or advancing any money as a loan specified therein, or from making any conveyance of any lands as specified in said contract, and the said S.W. McCann is discharged from the further performance of said contract.

'In witness whereof, The said parties have hereunto set their hands, the day and year above written. E. WILDER.

S. W. MCCANN.'

"11. That thereafter the said Goddard and the said plaintiff, John D. Shearer, and each and all of the other defendants herein in the time prescribed by law, duly filed their lien statements duly verified, and said statements were in accordance with all the statutory requirements, and notice in writing of the filing of the same at the time were duly served by the respective lien claimants upon the said defendants Wilder and McCann, except the claim of Goddard. A copy of the amended lien statement of Cyrus Goddard is made a part of this finding of fact, the same being attached to the amended cross-petition of said Goddard filed herein.

"12. That the said Wilder never has paid the said McCann anything for said houses so built on said lots, and that the only consideration of the contract of the said Wilder and McCann referred to in finding No. 10 was their mutual promises and releases just as in said writing set forth.

"13. That during the erection of said two houses on said lots the said Wilder visited the premises once when the plastering was being put on the last one thereof which was built, and when they were completed he examined and went through both of said houses.

"14. That the value of said lots described in plaintiff's petition before said two houses were built thereon was $ 250 per lot, or the total sum of $ 1,000; that said lots were enhanced in value by the building of said two houses by said Goddard, and by the materials and labor put therein by the claimants herein, in the sum of $ 2,154.27, and that said property after said houses were erected thereon was of the value of $ 3,154.27.

"15. At no time prior to the completion of the buildings did either Goddard or any subcontractor or material man, or any party to this suit, inquire of Wilder concerning the nature of McCann's contract or Wilder's interest in the premises.

"16. Wilder at no time supervised or directed the manner of the construction of the buildings or inspected the materials used, or gave any directions concerning the buildings; but after the buildings were alleged to be completed, Wilder refused to accept them as in accordance with the plans, but claimed that the dimensions were not proper, and therefore refused to make the loan of money to McCann as specified in his contract.

"17. At no time after the completion of the buildings was McCann enabled to discharge the liabilities or liens attached upon the premises, nor was he able to give the bond required by the statute against...