The Jeffersonville Water Supply Co. v. Riter

• Decision Date: 07 January 1897
• Docket Number: 18,003
• Citation: 45 N.E. 697,146 Ind. 521
• Parties: The Jeffersonville Water Supply Company v. Riter et al
• Court: Indiana Supreme Court

45 N.E. 697

146 Ind. 521

The Jeffersonville Water Supply Company v. Riter et al

No. 18,003

Supreme Court of Indiana

January 7, 1897

From the Floyd Circuit Court.

Affirmed.

A Dowling, for appellant.

S. S Johnson and Voigt & Stotsenburg, for appellees.

OPINION

Jordan, C. J.

Appellees brought this action to foreclose a mechanic's lien upon a claim due them for the erection of a standpipe. This is the second appeal to this court. See the Jeffersonville Water Supply Co. v. Riter, 138 Ind. 170, 37 N.E. 652. After the cause was remanded to the lower court by the order in the former appeal, appellees filed an amended complaint, and under the issues joined thereunder, a trial resulted in a finding that there was due to plaintiffs (now appellees) the sum of $ 6,000.00 and over. Judgment foreclosing the lien in controversy was awarded in their favor. The evidence has not been certified to this court, and a reversal of the judgment is sought by the appellant upon alleged errors of the trial court upon its rulings on demurrers to the pleadings.

The amended complaint inter alia substantially alleges that Samuel R. Bullock, on April 6, 1888, was the owner in fee-simple of certain real estate, described in the complaint, situated in the town of Port Fulton, in Clarke county, Indiana, and that his deed for said realty was at, and prior to said date of record in the recorder's office of said county; that on said 6th day of April, he and plaintiffs entered into a written contract whereby they agreed to furnish material for and erect a standpipe on said real estate for the sum of $ 7,900.00. Said pipe to be used in connection with the water works system then being built for the city of Jeffersonville. A copy of the contract is filed with the complaint. It further avers that on April 10, 1888, plaintiffs commenced the work of building and erecting the standpipe and furnishing material for the same, and on July 30, 1888, had it ready to be placed upon said real estate; and the building of said pipe thereon was completed on December 1, 1888, and on December 4, 1888, within sixty days after the material was furnished and the work thereon completed, the plaintiffs filed in the recorder's office of said county, a notice of their intention to hold a lien upon said property for the amount due upon their claim. A copy of this notice is filed with the complaint. That on April 21, 1888, said Bullock and his wife conveyed said real estate to the defendant, the Jeffersonville Water Supply Company, and that it is now the owner thereof, and is using and operating said standpipe; that plaintiffs had no knowledge of said conveyance by Bullock until after the completion of said work, and that said defendant withheld its said deed from record until August 20, 1888, being long after the plaintiffs had commenced the work of erecting the standpipe; that on the date last mentioned said company caused said deed to be recorded in the recorder's office of said county. Partial payments made by Bullock are averred, and judgment is demanded for a foreclosure of the lien.

After unsuccessfully demurring to this complaint, appellant filed its answer in six paragraphs. The first was a general denial. Second, payment. The third alleged that before the execution of the contract between Bullock and plaintiffs, as alleged in the complaint, it had contracted with said Bullock to construct a system of water works at the city of Jeffersonville, in Clarke county, Indiana, and as a part of said contract, Bullock was to furnish, at his own expense, land for the location of the standpipe, etc. That in pursuance of said contract Bullock purchased the real estate mentioned in the complaint, and thereafter caused to be erected thereon the standpipe mentioned; that he held said land in his own name, in trust, for said company; that on April 21, 1888, before plaintiffs had performed any labor or furnished any material for the standpipe, Bullock conveyed the legal title of said real estate to defendant. Open possession of the land by defendant is averred, and that plaintiffs thereby had notice that the company was the equitable owner of said real estate.

The fourth paragraph is similar to the third, but proceeds more fully and specifically upon the theory that the company had let a contract to Bullock to construct the standpipe and to purchase and furnish the ground for its location, and that plaintiffs in furnishing the material and doing the work, as alleged in the complaint, were but sub-contractors, under Bullock, and that as such they had failed to notify the defendant that they were furnishing said material and doing said work as such...