White Lake Lumber Co. v. Stone

• Decision Date: 24 March 1886
• Citation: 19 Neb. 402,27 N.W. 395
• Parties: WHITE LAKE LUMBER CO. v. STONE.
• Court: Nebraska Supreme Court

19 Neb. 402

27 N.W. 395

WHITE LAKE LUMBER CO.

v.STONE.

Supreme Court of Nebraska.

Filed March 24, 1886.

Appeal from Johnson county.

S. P. Davidson, for plaintiff.

T. Appleget & Son, for defendant.

REESE, J.

This is an action to foreclose a mechanic's lien for lumber, etc., furnished for the construction of a dwelling-house on the land of defendant Janovsky. The petition of the plaintiff contains the usual averments in actions of the kind, with the aditional allegation that defendant Stone claims some title to the property which is junior and inferior to the lien of plaintiff. Janovsky failed to answer, and default was entered against him. Defendant Stone answered, and alleged therein that he had purchased the land upon which the building was constructed, after the construction thereof; but before purchasing, he applied to the agent of plaintiff, in charge of its business, and who had sold the lumber to Janovsky, for the purpose of ascertaining whether the said plaintiff had or claimed a mechanic's lien on the property, and that he was informed by the agent that plaintiff had no lien or claim upon the premises, nor any claim against Janovsky which should becomea lien thereon; that, relying upon the representations, statements, and promises of such agent, he purchased the property. The cause was tried to the court, who found in favor of plaintiff as against defendant Janovsky, and rendered judgment for the amount claimed, but in favor of defendant Stone as to the lien, and refused to order the sale of the real estate. From the decree dismissing the action as against Stone plaintiff appeals.

It appears from the record that the whole account against Janovsky amounted to $310.80. Of this $160.80 had been paid, leaving a balance of $150. The last item of the account was furnished November 26, 1883. The purchase was made by Stone on the ninth day of January, 1884. The affidavit and account were filed in the office of the county clerk on the twenty-third of February following. Upon the trial, defendant Stone testified very positively that a day or two before making the purchase, and pending the negotiations, he called upon the agent of plaintiff at its usual place of business, and inquired particularly if there were to be any claims against the land, and if Janovsky owed anything for lumber, etc., and that he was informed by the agent that he had a note for the balance due, but that, if Stone could make the trade, to do so, and he would not be molested; that no lien would be claimed or asserted in case the trade was made; that as part, at least, of the consideration would be a store in Crab Orchard, where the agent and defendant Stone resided, he could get the payment out of the store, etc.; and that, relying on the statements and representations thus made, he made the trade. This testimony is in part corroborated by that of B. F. Stone, who testified that the agent informed him that if the trade went on he would get his pay out of the store. The agent, J. H. Hanna, testified, on rebuttal, that Stone came to the office of ...