Trueblood v. Shellhouse

• Citation: 49 N.E. 47,19 Ind.App. 91
• Decision Date: 14 January 1898
• Docket Number: 2,287
• Parties: TRUEBLOOD ET AL. v. SHELLHOUSE ET AL
• Court: Court of Appeals of Indiana

49 N.E. 47

19 Ind.App. 91

TRUEBLOOD ET AL. v. SHELLHOUSE ET AL

No. 2,287

Court of Appeals of Indiana

January 14, 1898

From the Marion Superior Court.

Affirmed.

W. V Rooker, for appellants.

D. A Myers, for appellees.

OPINION

COMSTOCK, J.

This was an action for the foreclosure of a mechanic's lien brought by appellees against appellants. Rogers, who was made a party defendant to answer to his interest, filed a disclaimer. There was a trial by the court, a special finding of facts, and decree in favor of appellees. The action was brought under the provisions of the mechanic's lien law of 1883 (Acts 1883, p. 140), as amended by the act of 1889 (Acts 1889, p. 257), and by the act of 1891 (Acts 1891, p 28, section 7255, Burns' R. S. 1894). Appellees sought to recover for materials furnished both the contractor and subcontractor. Emma Trueblood and Annie Brady severally assign errors.

The special findings are, briefly, in substance, as follows: On the 4th day of October, 1894, defendant Annie Brady and her husband Jas. G. Brady, entered into a written contract with one J. C. Riffner to construct a dwelling house on lot number 254, in the city of Indianapolis, Marion county, Indiana, for the sum of $ 1,650.00, by which said contract, said Riffner was to construct said dwelling house and furnish and pay for the materials therefor, and satisfy the claims of all laborers and subcontractors doing work thereon. After entering into said contract, said Riffner employed one Thomas Mockford as a subcontractor to do the painting and glazing of said dwelling house, for which said Mockford was to furnish all the materials. Said Annie Brady became the owner of said lot on October 19, 1894, by deed of conveyance from Edward F. Claypool and wife, on said date, which deed was duly recorded in the office of the recorder of Marion county, Indiana, on October 30, 1894, and she continued to be the owner of said lot from that time until after the completion of the said dwelling house thereon. At the time of the erection of the said dwelling house, the plaintiffs Conrad H. Shellhouse and Amanda May, together with defendant Frank Rogers, were copartners under the name and style of Shellhouse & Company, and were engaged in the business of selling and furnishing builders' supplies of various kinds in Indianapolis, Indiana. Shellhouse & Company sold and furnished to said Riffner certain materials to be used by said Riffner under his contract in the construction of the said house, and which were so used therein by said Riffner. The said materials are embraced in exhibit A, attached to the complaint. That the last items furnished him was on December 20, 1894; that the balance due on said bill at the time of bringing suit was $ 20.00; that there are errors in the statement of the amount furnished him of $ 8.54.

During the construction of said house, said firm of Shellhouse & Company sold and furnished to said Mockford, to be used by him in carrying out his said subcontract for the painting and glazing of said house, and which were so used by him, the materials set out in exhibit B in the plaintiff's complaint. The dates at which said materials were furnished are the same dates set forth in exhibit B, the last item being furnished on December 27, 1894; that the value of the materials so furnished was $ 62.10; that the balance due thereon after deducting credits on account of payments thereon was the sum of $ 11.10, which sum was due and unpaid at the time of the bringing of this suit, and is still due and unpaid.

On the 21st of February, 1895, said Shellhouse & Company filed in the office of the recorder of Marion county, Indiana, a notice in writing of their intention to hold a mechanic's lien on said premises and the dwelling house erected thereon for said materials so furnished and used as aforesaid by said Riffner and Mockford; that such notice was duly recorded in the proper record of said office; that during the times before mentioned, the firm of Shellhouse & Company was composed of said Conrad Shellhouse, Amanda May and Frank Rogers, but that after the filing of said notice of lien, and prior to the bringing of this suit, said defendant Rogers sold all his right, title and interest in and to the business and property of said firm, to the plaintiff Anthony F. Klineschmidt, since which time said Rogers has had no interest in the claims sued upon in this action, and said firm has been composed of the plaintiffs herein, who are owners of the claims in suit. On November 15, 1895, defendant Anna Brady, sold and conveyed said real estate by deed of conveyance, in which her husband joined, to the defendant Emma Trueblood, and the said Emma Trueblood is still the owner thereof; that defendant Sylvester Trueblood, is the husband of said Emma Trueblood, and has no interest in said real estate otherwise than as such husband. The findings are substantially the same as the averments of the complaint, with the exceptions of the errors in the amounts, as above stated, and an error in the date of sale of one item on the first bill. Under the assignment of error appellants' counsel discuss a number of questions which we will consider in the order in which they are presented. First, "May a material man's lien on a dwelling house be assigned by parol?"

The account being a chose in action was assignable in writing, or verbally. The assignee by delivery, of a chose in action may sue in his own name, making the assignor a party defendant. The assignment of the account carries with it the lien, which is a mere incident of the debt. Midland R. R. Co. v. Wilcox, 122 Ind. 84, 23 N.E. 506; Watson's Ind. Statutory Liens, section 956; Sinton v. Steamboat R. R. Roberts, 46 Ind. 476; Boisot on Mechanics' Liens, sections 9, 10, 11, 12. The question must be answered in the affirmative.

Second. "May a single notice of intention to hold a lien be made the basis of acquiring a lien for several different claims held by one assignee? " The complaint alleges but one notice of intention to hold a lien. Two bills of particulars are set out; exhibit A, materials sold to Riffner, and exhibit B, materials sold to Mockford. This question too must be answered in the affirmative under the decision in Smith v. Newbaur, 144 Ind. 95. The plaintiff in said cause sought to foreclose a lien for materials furnished to a contractor and subcontractor at different dates, but one notice of intention to hold a lien had been filed. Speaking for the court in said opinion Howard, C.J., said: "Counsel next claim that the court erred in overruling appellant's motion to strike out parts of the complaint. The parts of the complaint which appellant desired to be stricken out related to the materials furnished to the subcontractors. * * * All the items, however, both those ordered by the contractors and those ordered by the subcontractors, were furnished from time to time for the building in question. * * * The statute, supra, section 7255, Burns' R. S. 1894, places subcontractors in the same category with contractors so far as the right to acquire a lien is concerned, and we can see no difference in the rights of those who furnish materials to contractors and those who furnish them to...