Von Dorn v. Mengedoht

• Decision Date: 26 June 1894
• Citation: 41 Neb. 525,59 N.W. 800
• Parties: VON DORN v. MENGEDOHT ET AL.
• Court: Nebraska Supreme Court

41 Neb. 525

59 N.W. 800

VON DORN

v.MENGEDOHT ET AL.

Supreme Court of Nebraska.

June 26, 1894.

Syllabus by the Court.

1. Where a contractor agrees with the owner of real estate to furnish the material and labor and erect for him an improvement thereon, and such contractor voluntarily abandons the work before completion, the owner may charge the contractor with (a) the necessary costs of completing the improvement as the contractor agreed to complete it, (b) the amount of all payments made to the contractor on the contract, (c) the amount of all valid liens on the real estate for labor and material furnished the contractor and used by him in such improvement, and (d) the amount of actual damages the owner has sustained by reason of the contractor's default. The difference between the total of these items and the contract price is the measure of damages of both the owner and contractor. If such total exceeds the contract price, such excess is the amount the owner may recover of the contractor. If the contract price exceeds such total, such excess is the amount the contractor may recover from the owner.

2. Where such a contract exists, and the owner rightfully terminates the same by virtue of some provision therein authorizing him to do so upon the happening of certain contingencies, then the contractor is entitled to recover from the owner the actual benefit he has received from the contractor's partial performance; and this is found by ascertaining the reasonable worth of such partial performance appropriated or received by the owner at the time of such receipt or appropriation, and deducting therefrom payments made to the contractor, and the actual damages, if any, the owner has sustained by the contractor's default, if he has made one.

3. Where such a contract exists, and the owner wrongfully terminates the same, or the contractor's employment thereunder, before the completion of the improvement, the contractor's measure of damages is the reasonable value of his partial performance, increased by all actual damages sustained by him by reason of the owner's unjustifiable termination of the contract.

4. The mechanic's lien law of this state makes no distinction between skilled and unskilled labor, and its policy is to insure to both classes remuneration for whatever they may do towards increasing the value of an owner's real estate by the erection of improvements thereon.

5. An architect, who furnishes drawings and plans for an improvement on real estate, and superintends the erection of such improvement in accordance with such plans in pursuance of a contract with the owner, is entitled to a lien upon such improvement and the real estate upon which it is situate, upon compliance with the mechanic's lien law of the state.

6. There is nothing in our constitution or laws that prohibits a woman from holding the office of notary public.

7. The right of a woman to hold the office of notary public, when she has been appointed and commissioned to such office by the governor, can only be inquired into in a suit or proceeding brought against her for that purpose.

8. A motion for a new trial on the ground of newly-discovered evidence should be overruled even if the evidence alleged to be newly discovered is competent under the pleadings, when it appears that the witness by whom it is proposed to prove the facts alleged to be newly discovered testified on the trial of the case, was examined by the applicant for a new trial, and no effort was made at that time to elicit the facts claimed to be newly-discovered evidence. Fitzgerald v. Brandt, 54 N. W. 992, 36 Neb. 683, followed.

9. The pendency of a motion for a new trial does not supersede a decree or judgment rendered, or stay the execution thereof.

10. A judicial sale occurred on the 25th of April. The first publication of the notice of such sale was made on the 21st of March. As 30 days intervened between the date of the first publication and the date of the sale, held sufficient. Carlow v. Aultman, 44 N. W. 873, 28 Neb. 672, followed.

Error to district court, Douglas county; Irvine, Judge.

Action by Christine Sprecht against Theodore L. Von Dorn, Fred Mengedoht, and others, to enforce a mechanic's lien. Judgment for said Mengedoht and others, and Von Dorn brings error. Affirmed.Kennedy, Gilbert & Anderson and G. W. Covell, for plaintiff in error.

J. W. West and Estabrook & Davis, for defendants in error.

RAGAN, C.

November 3, 1890, Theodore L. Von Dorn owned certain real estate in the city of Omaha, and on that date a contract in writing was entered into between him and Frederick Mengedoht and Adam Feichtmayer, copartners, by the terms of which they, in consideration of $18,540, to be paid them, agreed to furnish all material and labor and construct for Von Dorn a building on his real estate, the same to be completed by April 1, 1891. This contract, among other things, provided that all material and labor used in the construction of such building should be first-class in every respect; that the building should be constructed according to certain plans and specifications made a part of the contract; that “the contractor shall and will well and sufficiently perform and finish, under the direction and to the satisfaction of James McDonnell, architect, acting as agent of said owner, all the works * * * agreeably to the drawing and specifications made by the said architect; that the architect or his representative should superintend the work; that, should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of material of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, * * * then, if the architect should certify that such refusal, failure, or neglect of the contractors was a sufficient reason therefor, the owner should be at liberty to terminate the employment of the contractors, and enter upon the premises, take possession of and complete the work.” The contractors at once entered upon the performance of said contract, and furnished a large amount of labor and material towards the construction of the building they had agreed to erect. Before April 1, 1891, Von Dorn discharged McDonnell as architect and superintendent, and appointed one Field in his place; and, having obtained a certificate from him to the effect that the material being used by the contractors in the erection of the building was not of the character or quality called for by the contract, and that the building was not being erected according to the plans and specifications, Von Dorn terminated the employment of said contractors, took possession of and finished the building himself. One Specht brought this suit to the district court of Douglas county to have established and foreclosed against Von Dorn's property a mechanic's lien which he claimed for certain labor and materials furnished by him to the contractors, and used by them in the partial construction of Von Dorn's building. Von Dorn and wife, the contractors, McDonnell, and a large number of material men were made defendants. The controversy here, however, concerns only Von Dorn, Mengedoht, and McDonnell. Mengedoht, having succeeded by assignment to all the rights of Mengedoht & Feichtmayer, copartners, filed an answer in the nature of a cross bill, claiming judgment against Von Dorn, and a lien upon his real estate, for the value of the labor and materials furnished by Mengedoht & Feichtmayer under the contract of November 3, 1890. McDonnell also filed an answer in the nature of a cross petition, claiming judgment against Von Dorn, and a lien on his real estate, for services as architect and superintendent in the premises. The answer of Von Dorn to the cross petitions of Mengedoht, and the reply of the latter thereto, put in issue between them the following questions of fact: First. Were the labor and materials furnished by Mengedoht & Feichtmayer towards the construction of the Von Dorn building of the character and quality called for by the contract? Second. Was the building, so far as completed, erected according to the plans and specifications? Third. Were Mengedoht & Feichtmayer, at the time Von Dorn terminated their employment, able, ready, and willing to complete the building according to their contract? In other words, was the termination of Mengedoht & Feichtmayer's employment by Von Dorn wrongful? The answer of Von Dorn to the cross petition of McDonnell, and the latter's reply thereto, made this issue of fact, viz. was the discharge of McDonnell by Von Dorn wrongful? The district court referred the case to an able lawyer and two skilled builders as referees. These referees found all the issues of fact and law in favor of Mengedoht & Feichtmayer and against Von Dorn, and duly reported the same to the district court. Von Dorn filed exceptions to the report, which were overruled, and judgment entered according to the findings and conclusions of the referees. The property was advertised, and sold, and the sale confirmed. Von Dorn brings the judgment rendered against him in favor of Mengedoht & McDonnell here on error, and from the decree of the district court confirming the sale made to satisfy the mechanic's lien judgments, he appeals.

We will first dispose of Von Dorn's petition in error.

1. The first alleged error is assigned in the following language: “That in the hearing of said cause below divers and sundry errors occurred in the introduction of evidence notwithstanding the objections of the plaintiff in error, which evidence was immaterial, irrelevant, incompetent, and prejudicial to the plaintiff in error, and excepted to by plaintiff in error at the time; all which fully appears in the bill of exceptions on file in this court.” This assignment of error is too indefinite for review. We cannot look through a record for the purpose of ascertaining if it contains error. If a litigant is of opinion that a ruling of the...