Weir v. Thomas

• Decision Date: 04 April 1895
• Citation: 44 Neb. 507,62 N.W. 871
• Parties: WEIR ET AL. v. THOMAS ET AL.
• Court: Nebraska Supreme Court

44 Neb. 507

62 N.W. 871

WEIR ET AL.

v.THOMAS ET AL.

Supreme Court of Nebraska.

April 4, 1895.

Syllabus by the Court.

In a contest for priority as between a mortgage filed for record August 21, 1890, and a claim for a mechanic's lien in which the material was alleged to have been delivered “between August 21, 1890, and January 22, 1891,” held that the word “between” excluded the 21st, from which it resulted that the lien of the mortgagee was senior and superior to that of the material man.

Appeal from district court, Lancaster county; Tibbets, Judge.

Action by A. H. Weir & Co. against Sarah F. Harris and Susie L. Thomas to foreclose a mechanic's lien. From the judgment rendered, defendant Harris appeals. Reversed.Harwood, Ames & Pettis, for appellant.

Mockett, Rainbolt & Polk, S. L. Geisthardt, and Darnall & Kirkpatrick, for appellees.

RYAN, C.

In its petition the firm of A. H. Weir & Co. alleged that in pursuance of a contract with F. J. Andrews it had furnished material for a building on and between August 21 and January 22, 1891, for which, after crediting all payments, there still remained due a balance of $404.30, for which sum, with interest, there was a prayer for a foreclosure. Sarah F. Harris, one of the defendants, appeals from the decree, which postponed her rights to those of A. H. Weir & Co. Her mortgage on the premises, against which the mechanic's lien was claimed, was filed on August 21, 1890. In the itemized account attached to the affidavit filed for a lien there were descriptions of lumber, but no date was specially given in connection with any of these items earlier than August 23, 1890. To establish its priority over this mortgage, however, the following language, with which the statement of account was prefaced, was relied upon by plaintiff: “Lincoln, Neb., Dec. 29th, 1890. Estimate on original bill made by A. H. Weir & Co. For Susie L. Thomas job; F. D. Andrews, contractor. Delivered between August 21st, 1890, and Jany. 22d, 1891.” If this language fairly implies that the two dates named are included by the use of the word “between,” the finding of the district court adverse to the mortgage in question is sustainable; otherwise not. In the case of Bunce v. Reed, 16 Barb. 347, was involved the definition of the word “between,” found in the same connection as above. Judge Hand said: “The affidavit of publication is defective in this case unless the words ‘between the 7th day of December, 1850, and 1st day of March, 1851,’ supply the defect. The 7th day of December was Saturday, and that was the last day notice could have been published. It has been decided that ‘till’ includes the day to which it is prefixed (Dakins v. Wagner, 3 Dowl. 535); but ‘between,’ when properly predicable of time, is intermediate, and strictly does not include in this case either the 7th of December or 1st of March. ‘Between’ two days was exclusive of both. Atkins v. Insurance Co., 5 Metc. (Mass.) 440. The affidavit does not show a publication 84 days.” In Atkins v. Insurance Co., supra, the coffee insured was to be shipped between February 1 and July 15, 1840, under the terms of the policy. In the opinion of the court there was the following language: “It is undoubtedly true that the word ‘between’ is not always used to denote an intermediate space of time or place, as the plaintiff's counsel has remarked. We speak of a battle ‘between’ two armies; a combat, a controversy, or a suit at law ‘between’ two or more parties; but the word thus used refers to the actions of the parties, and does not denote locality or time. But if it should be said that there was a combat ‘between’ two persons, ‘between’ two buildings, the latter word would undoubtedly...