Seran v. Rose

• Decision Date: 03 July 1923
• Docket Number: Case Number: 11328
• Citation: 93 Okla. 192,219 P. 940,1923 OK 451
• Parties: SERAN v. ROSE et al.
• Court: Oklahoma Supreme Court

1923 OK 451

219 P. 940

93 Okla. 192

SERAN v. ROSE et al.

Case Number: 11328

Supreme Court of Oklahoma

Decided: July 3, 1923

Syllabus

¶0 1. Mechanics' Liens--Personal Judgment.

Under section 7463. Comp. Stat. 1921, a subcontractor, materialman, or workman, between whom and the owner there is no privity of contract, and in whose favor no direct liability has been imposed upon the owner, is not entitled to a personal judgment against the owner.

2. Same--Judgment.

A contractor obtained judgment against the owner for balance due on building per contract. Record examined, and held, the court erred in adding thereto, in its judgment, the amount of an uncontested materialman's lien for which the contractor alone was personally liable.

3. Contracts--Written Contract--How Altered--Executed Oral Agreement.

Section 5081, Comp. Stat. 1921, provides that: "A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise." Record examined, and held, to sustain a verdict of jury that contract was changed by executed oral agreement.

4. Principal and Agent--Agency--Parol Evidence--Proof.

An agency resting in parol can generally be proved by testimony of either the principal or person who claims to act as agent.

Commissioners' Opinion, Division No. 2.

Error from District Court, Okfuskee County; Lucien B. Wright, Judge.

Action by A. Rose against B. P. Seran and Dascomb-Daniels Lumber Company to foreclose mechanics' lien.Judgment for plaintiff and for defendant Lumber Company. and defendant Seran brings error. Modified and affirmed.

J. C. Wright, C. T. Huddleston, and Logan Stephenson, for plaintiff in error.

Martin L. Frederichs and W. E. Wells, for defendants in error.

ESTES, C.

¶1 Defendant in error A. Rose, as plaintiff, sued B. P. Seran, plaintiff in error, as defendant, and the Dascomb-Daniels Lumber Company, defendant in error, as defendant, in the district court of Okfuskee county to foreclose mechanics' lien on certain real estate in the town of Faden, Okla. He sued on his written contract for a balance due and for certain extras placed in the building by mutual agreement of the parties, and alleged that the lumber company had furnished material to him for the building and that the lumber company had a lien for the same. Seran admitted the contract, denied that the building was ever completed according to contract, set up various items wherein such failure consisted, and asked damages for failure to deliver the building within the time, and disputed the amount of the balance due under the contract, and counterclaimed for a balance against plaintiff. The lumber company admitted the facts pleaded by the plaintiff, set up its lien, and asked for a judgment against both Rose and Seran, and for a foreclosure of its lien. Seran did not file reply to the answer and cross-petition of the lumber company. Without any objection, the court submitted the issues between Rose and Seran to a jury, and excluded from the consideration of the jury all issues as to the claim and rights of the lumber company. A verdict for $ 1,400 and attorney fees was rendered in favor of the plaintiff. On said verdict the court rendered personal judgment in favor of Rose against Seran and ordered foreclosure, and also rendered personal judgment in favor of the lumber company against both Rose and Seran and ordered foreclosure.

¶2 Seran, as plaintiff in error, lodged the case in this court on various assignments. The trial really amounted to an accounting between Rose and Seran, and the jury having passed upon the various items between them on instructions by the court, which were not excepted to, Seran is foreclosed thereby as to such accounting under the well-known rules of law. Certain other assignments of error remain to be considered.

(1, 2.) Plaintiff in error complains of the personal judgment against her in favor of the lumber company. Counsel for defendants in error contend that plaintiff in error did not raise any objection to such personal judgment in the motion for new trial. A party cannot assign error for the first time on appeal. Brown v. Chowning, 59 Okla. 278, 159 P. 323. While the first ground of the motion for new trial is somewhat indefinite, it is specified as error, the rendering of judgment in favor of the lumber company. This, we think, is sufficient to save the question for review. Neither the pleadings nor the evidence show any contract between the lumber company and Seran. The lumber company filed its lien under section 7463, Comp. Stat. 1921, and served its notice thereunder and claimed no lien otherwise. The lumber company was, undoubtedly, entitled to personal judgment against Rose. We are at a loss to understand on what theory it claimed, or the court rendered personal judgment against Seran. Although the latter did not reply to the cross-petition of the lumber company, denying personal liability, the lower court should have modified its Judgment in that behalf when the matter was called to the

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