Sheehy v. Fulton

• Decision Date: 03 January 1894
• Docket Number: 5260
• Citation: 57 N.W. 395,38 Neb. 691
• Parties: JAMES F. SHEEHY, APPELLANT, v. HUGH FULTON ET AL., APPELLEES
• Court: Nebraska Supreme Court

57 N.W. 395

38 Neb. 691

JAMES F. SHEEHY, APPELLANT, v. HUGH FULTON ET AL., APPELLEES

No. 5260

Supreme Court of Nebraska

January 3, 1894

APPEAL from the district court of Lancaster county. Heard below before FIELD, J.

AFFIRMED.

Marquett Deweese & Hall, for appellant:

The plaintiff is entitled to a prior lien for the balance of his purchase money under and by virtue of the terms of the contract of sale. (Neil v. McKinney, 11 Ohio St. 58; Zeigler, Baker & Co.'s Appeal, 69 Pa. 471; Logan v Taylor, 20 Iowa 297; Wilkerson v. Rust, 57 Ind 172; Bohn Mfg. Co. v. Kountze, 30 Neb. 719; Henderson v. Connelly, 123 Ill. 98; Hickox v. Greenwood, 94 Ill. 266.)

No attempt is made to reform the contract. The evidence admitted attempting to show there was a verbal agreement that a building should be erected was incompetent. (Bast v. First Nat. Bank of Ashland, 101 U.S. 93; Martin v. Berens, 67 Pa. 459; Barnhart v. Riddle, 29 Pa. 96; 1 Greenleaf, Evidence, sec. 275; First Nat. Bank of St. Paul v. Nat. Marine Bank of St. Paul, 20 Minn. 63.)

F. A. Boehmer and W. A. Williams, for appellee Sterling P. Smith et al.:

The decree of the court below giving the mechanics prior liens is correct. (Bohn Mfg. Co. v. Kountze, 30 Neb. 719; Henderson v. Connelly, 123 Ill. 98; Hill v. Gill, 42 N.W. [Minn.], 294; 2 Jones, Liens, secs. 1255, 1256, and cases cited.)

Talbot & Bryan and T. S. Allen, for appellee Pomeroy Coal Company:

The promise of plaintiff to pay for materials was an original promise and not within the statute of frauds. (Waters v. Shafer, 25 Neb. 225; Lindsey v. Heaton, 27 Neb. 668.)

Stevens, Love, Cochran & Teeters, for other appellees.

OPINION

The opinion contains a statement of the case.

IRVINE, C.

Upon September 25, 1890, the plaintiff contracted to sell a lot in the city of Lincoln to the defendant Fulton, $ 5 of the purchase price being paid in cash, and the remainder, $ 3,495, to be paid November 1, 1890. The construction of a building upon the lot was begun by Fulton a few days after the execution of this contract. This suit was brought by the plaintiff to foreclose his lien for the purchase money. A number of defendants set up mechanics' liens growing out of the performance of labor and furnishing of material for the building. The decree of the district court established these liens as prior to the plaintiff's lien for the unpaid purchase money. The principal controversy is as to the propriety of the decree in so subordinating the vendor's lien to the mechanics' liens. The mechanics' lienors to support the decree, rely upon the doctrine of Bohn Mfg. Co. v. Kountze, 30 Neb. 719, 46 N.W. 1123. The plaintiff contends, first, that no agreement charging the owner of the fee appears in the written contract of sale, and that parol evidence was inadmissible to establish such agreement; second, that the evidence admitted was insufficient to show such an agreement.

As to the first contention, it is to be observed that the controversy here is not between the parties to the written contract. The lienors, being strangers to that contract, are not bound by the terms of the writing; but they are at liberty to enforce the real understanding and contract between the parties, the question being not whether there was an agreement between the vendor and vendee capable of enforcement between them, but whether the vendor by his acts had constituted himself a principal in the construction of the building and so charged his estate in the land.

As a preliminary to a consideration of the other branch of the question, that is, the sufficiency of the evidence to bring the case within the rule of Bohn Mfg. Co. v Kountze, we think it is proper to say that in some instances that rule seems to have been misunderstood. An impression seems to have been created that the general effect of Bohn Mfg. Co. v. Kountze, 30 Neb. 719, 46 N.W. 1123, and Millsap v. Ball, 30 Neb. 728, 46 N.W. 1125, was to charge the vendor's estate in every case where by the nature of his contract or otherwise he has knowingly permitted the erection of a building by the vendee upon the land sold. A proper understanding of these cases leads to no such conclusion. The true rule is well stated in the case of Pickens v. Plattsmouth Investment Co., 37 Neb. 272, 55 N.W. 947, as follows: "By this it was not held that where the owner of the land sells it and simply takes back a mortgage for the purchase price without in any way becoming a party to a contract for the erection of improvements, that one who furnishes materials or labor upon a contract with the vendee alone can assert thereon a lien superior to that of the said mortgage duly recorded. Quite to the contrary it has been recently held by this court in Henry & Coatsworth Co. v. Fisherdick, 37 Neb. 207, 55 N.W. 643, where one furnished money to build a house for which he took a mortgage upon the premises whereon the erection was to be made, that the record of such mortgage gave a priority to the rights of material-men and mechanics who began to confer value upon the mortgaged property after the record of the mortgage. To subject a vendor's rights in the subject-matter of the sale to the claim of a mechanic's lienor, it must appear, that, with respect to the value conferred by the labor or material of such lienor, there was a privity of contract through the vendee between the vendor and such lienor. This privity will not be implied from the mere fact that the mechanic's lienor, upon the faith of a contract between himself and such vendee, furnished labor or material. It must be established by the proofs, or as fairly inferable from the facts as any other independent fact or proposition." The real question in this case, then, was whether or not such a privity had been established...