Williams v. Judd-Wells Co.

• Decision Date: 24 May 1894
• Citation: 59 N.W. 271,91 Iowa 378
• Parties: WILLIAMS v. JUDD-WELLS CO. ET AL.
• Court: Iowa Supreme Court

91 Iowa 378

59 N.W. 271

WILLIAMS

v.JUDD-WELLS CO. ET AL.

Supreme Court of Iowa.

May 24, 1894.

Appeal from district court, Pottawattamie county; A. B. Thornell, Judge.

Charles R. Hannan is receiver for Kimball-Champ Investment Company, and both are parties defendant in this suit. About the 1st of May, 1890, the plaintiff entered into a contract with the Judd-Wells Company and C. B. Judd to furnish labor and building materials for 12 houses to be erected on lots in certain additions to the city of Council Bluffs. The houses were erected in pursuance of the contract, ten of them being on Park avenue and two on Avenue G. The houses were on separate lots, except that on one lot there were two. The action is to establish a mechanic's lien, and the following is the affidavit filed to secure it: “State of Iowa, County of Pottawattamie--ss.: I, N. W. Williams, being first duly sworn, say that on or about the 1st day of May, 1890, made a verbal contract with the Judd-Wells Co. and C. B. Judd to furnish labor and building materials for twelve (12) dwelling houses, to be erected and situated upon the following described land, of which the said Benj. M. Wells, C. B. Judd, and J. W. Taylor was then, and is now, the owner in fee simple, to wit: Lots 1, 2, 3, and 4 in Judd's Park Add. to Council Bluffs, Iowa; lots 1, 2, 3, 4, 5, and 6 in Wells' Park Add. to Council Bluffs, Iowa; lot 5, blk. 16, Mill addition to Council Bluffs, Iowa. That under and by virtue of said contract the said N. W. Williams furnished the labor and building materials for said twelve (12) dwellings as specified in the annexed account, which account is hereto attached, marked ‘Exhibit A,’ and made a part hereof.” The account annexed shows items for labor and materials from April 29 to December 19, 1890, aggregating $4,150.99, and a cash credit of $387.67, leaving a balance of $3,772.32, for which the lien is sought to be established. The account, as attached to the affidavit and filed, was general as to all the work, and in no way indicated the account as to the particular buildings. The prayer to the original petition was for a judgment for the amount, “and that he have a decree establishing his mechanic's lien against said estate;” and a further prayer that his lien be made superior to all other defendants', etc. Mortgages were executed to Kimball-Champ Investment Company on 10 of the lots for $2,750 each, and they were filed for record at different times from June 10 to October 2, 1890. The Kimball-Champ Investment Company answered by such denials of information as to put the plaintiff to the proofs, and by way of counterclaim pleaded the superiority of its mortgage liens, and asked that they be so decreed. To the petition was filed a demurrer, and by agreement and leave of the court the answer was to be considered as subject thereto. At the conclusion of the evidence the plaintiff so amended his petition as to state his account against each particular building for the amount furnished to each, and asked that the lien be so established. The demurrer and answer were, by agreement, made applicable to the petition as amended, and the district court entered a decree in accord with the final prayer of the petition, making the liens superior to the mortgage liens of the investment company, and it appealed. Affirmed.Stone & Dawson, for appellant.

G. A. Holmes and Ross & Ross, for appellees.

GRANGER, C. J.

1. Appellant's particular complaint is that the “statement and lien seek to charge the eleven other buildings, and the lots on which they are situated, with a lien for the material furnished on each one, and to charge each one with a lien for all the material furnished for the remainder.” By the contract under which the lien is claimed plaintiff was to do work on 40 houses in the city at a certain price per yard for plastering and a certain price per thousand for brick in the wall. The contract included...