Western Cornice & Manufacturing Works v. Leavenworth

• Decision Date: 20 October 1897
• Docket Number: 7438
• Parties: WESTERN CORNICE & MANUFACTURING WORKS, APPELLEE, v. EDWARD A. LEAVENWORTH ET AL., APPELLANTS
• Court: Nebraska Supreme Court

72 N.W. 592

52 Neb. 418

WESTERN CORNICE & MANUFACTURING WORKS, APPELLEE, v. EDWARD A. LEAVENWORTH ET AL., APPELLANTS

No. 7438

Supreme Court of Nebraska

October 20, 1897

APPEAL from the district court of Douglas county. Heard below before FERGUSON, J. Affirmed in part and reversed in part.

Decree of the district court affirmed in part and reversed in part and cause dismissed.

H. H Baldrige and Bartlett, Baldrige & De Bord, for appellants.

T. J Mahoney, James W. Carr, and Mahoney, Minahan & Smyth, contra.

OPINION

HARRISON, J.

It appears herein that one E. A. Leavenworth, of appellants, began, during the year 1891, the erection of a hotel building in the city of Omaha (the building has since been named and is known as the "Madison Hotel"), and during the course of its construction entered into contracts with various firms and persons to furnish material and perform labor therefor and thereon. Leavenworth failed to pay the accounts for labor and material as they matured, and claims of liens therefor were prepared and filed. Of these claims was one in favor of Christian Specht, which was assigned to the Western Cornice Manufacturing Works, and this suit was originally instituted in its behalf. The claim was afterward transferred to John McVoy & Co., and it became a party to the suit by intervention and filed a petition in which were set forth its claim and demand for relief. Answers were filed for several of the defendants. Issues were joined and tried, the decree resultant being favorable to the asserted rights of the lien-holder, the assignee of the special claim. The defendants have appealed to this court.

In August or September, E. A. Leavenworth conveyed the premises on which the hotel was being erected to Helen E. Hunt, the instrument of conveyance being in purport a warranty deed. Helen E. Hunt executed and delivered to Leavenworth a power of attorney- by which he was authorized to sell and convey the property for her. On March 3, 1892, Leavenworth, as attorney-in-fact for Helen E. Hunt, conveyed the property to Charles L. Gyger, as trustee for a number of parties who had each filed a mechanic's lien against the premises. Gyger, after the commencement of this suit, pursuant to directions from the parties for whom he was holding in trust, conveyed the property to the Madison Hotel Company.

It was pleaded for appellants that the contract under which the claim of lien, the foreclosure of which was the object of this action, was not made with Christian Specht, but with one George Specht; that no contract was entered into with Christian Specht to furnish any material or perform any labor in, on, or about the building of said hotel; hence there could exist no account or lien in his favor. There is a conflict in the evidence on this point, but after a review of it we are satisfied that there is sufficient to sustain the finding of the trial court that there was a contract with Christian Specht; and agreeably to a well settled rule of this court the finding will not be disturbed. ( Steinkraus v. Korth, 44 Neb. 777, 62 N.W. 1110.)

The claim for the lien prepared and filed was for material furnished and labor performed in and upon a building on "lot eight (8), in block forty-eight (48), city of Omaha," and the evidence disclosed that the hotel was erected partly on said lot eight and in part on the strip of land contiguous thereto, twenty feet in width and one hundred and thirty-two feet in length, which had never been a portion of said block, but had been of the adjoining street, which had been reduced in width and the strip to which we have referred sold to the proprietor of the adjoining lot 8. It was further shown by the evidence that the major portion of the material furnished and labor performed included in the lien in suit were for and upon the part of the hotel built on the strip of land, and not on lot 8. The decree of the trial court established the lien on lot 8, block 48, for the full amount claimed therein, and in this was wrong and cannot prevail. Our statute on the subject of mechanics' and laborers' liens provides: "Any person who shall perform any labor, or furnish any material or machinery or fixtures for the erection, reparation, or removal of any house, mill, manufactory, or building or appurtenance by virtue of a contract or agreement, expressed or implied, with the owner thereof or his agents, shall have a lien to secure the payment of the same upon such house, mill, manufactory building or appurtenance, and the lot of land upon which the same shall stand." (Complied Statutes, 1895, sec. 1, art. 1, ch. 54.) There are further provisions in succeeding sections of the same chapter in regard to filing in a designated office a sworn statement of the claim of lien. It has been held by this court in regard to these provisions: "One who claims the benefits of the mechanic's lien law must show a substantial compliance with each essential requirement thereof, one of which is that the sworn statement to be filed shall contain a description of the land upon which the labor was done or material was furnished, for the purpose contemplated by such law. A description of property in such statement which is entirely inapplicable to the land actually benefited cannot be made effective to any extent for the purpose of subjecting the land actually built upon to the operation of the lien claimed. (Holmes v. Hutchins, 38 Neb. 601, 57 N.W. 514, followed.)" "This rule holds good as well in favor of one who was the owner of the land at the time the improvements were erected as in favor of a subsequent purchaser." (Bell v. Bosche, 41 Neb. 853, 60 N.W. 92. See, also, Holmes v. Hutchins, 38 Neb. 601, 57 N.W. 514.) It is clear that under the terms of the section of the statute quoted above, lot 8, block 48, cannot be sold for labor done and material supplied on and for a building on the strip of land adjacent to it. The lien is confined to the building and the...