Zarrs v. Keck

• Decision Date: 02 May 1894
• Citation: 58 N.W. 933,40 Neb. 456
• Parties: ZARRS v. KECK ET AL.
• Court: Nebraska Supreme Court

40 Neb. 456

58 N.W. 933

ZARRS

v.KECK ET AL.

Supreme Court of Nebraska.

May 2, 1894.

Syllabus by the Court.

1. A building contract between the owner and contractor provided: “The contractor hereby covenants and agrees that all materials and labor used in said building shall be promptly paid for, so that the same shall not become the subject of a lien against said premises; * * * and the owner shall have the right to retain out of any payment due or to become due an amount sufficient to indemnify her against any claim for materials or labor.” Held, that this agreement did not estop the contractor from filing a lien upon the premises.

2. One who furnishes material used in the construction of an improvement is not excluded from the benefits of the mechanic's lien law solely because the materials so used were furnished to a subcontractor of a subcontractor.

3. A subcontractor brought a suit to foreclose a mechanic's lien. The owner, the original contractor, and a material man were made defendants. The material man filed an answer in the nature of a cross bill, claiming a lien upon the premises of the owner for material furnished in the erection of the improvement. To this cross bill the owner filed no answer. Held, that the owner could not be heard to object on appeal to the correctness of the finding and decree of the district court in favor of a material man.

4. Where a finding of fact is made by a district court on conflicting evidence, this court will decline to disturb such finding, unless it appears that the same is unsupported by competent evidence.

Appeal from district court, Buffalo county; Church, Judge.

Action by Henry Zarrs against Samantha Keck and Anthony Campbell, impleaded with Spooner R. Howell and Peterson & Ryan, for the enforcement of a mechanic's lien. From the decree, defendants Keck and Campbell appeal. Affirmed.Calkins & Pratt, for appellants.

Dryden & Main and Thompson & Oldham, for appellees.

RAGAN, C.

On the 25th day of May, 1889, Mrs. Samantha Keck was the owner of certain real estate in the city of Kearney, Neb., and upon said date she entered into a written contract with one Arthur Campbell. By the terms of this contract Campbell agreed to furnish all material and labor and to erect for Mrs. Keck an annex to her hotel in said city. The hotel was to be completed by the 1st of October, 1889. As a consideration for the performance of his contract Campbell was to be paid $25,800. These payments were to be made in installments on the 1st days of July, August, September, and October; each payment to be equal to 80 per cent. of the value of the material and labor furnished the preceding month. The contract further provided: “It being understood that the final payment is to be made within twenty days after this contract is completely finished: provided * * * that before each payment, if required, the contractor shall give the owner good and sufficient evidence that the premises are free from all liens and claims chargeable to said contractor, and the owner shall have the right to retain out of any payment then due or thereafter to become due an amount sufficient to completely indemnify her against such lien or claim. After all such payments are made, the contractor shall refund to the owner all moneys that the latter may have been compelled to pay in discharging any lien on said premises made obligatory in consequence of the former's default.” “The contractor hereby covenants and agrees that all materials and labor used in said building shall be promptly paid for, so that the same shall not become the subject of a lien against said premises; * * * that he will, before each and every installment shall becomedue on this contract, and before he shall be entitled to the same, furnish to the owner satisfactory written evidence that all materials furnished for and used in said building up to such time, and all labor performed thereon, has been fully paid for. And the said contractor shall not be entitled to receive, nor shall the owner be required to pay, any installments of this contract until all obligations for labor and materials which may become the subject of a lien upon said premises shall have been fully paid and settled; * * * and the owner shall have the right to retain out of any payment due or to become due an amount sufficient to completely indemnify her against any lien or claim for materials or labor.” There was a further provision in the contract that Mrs. Keck should be entitled to damages at the rate of $20 per day for each day that the hotel remained unfinished after the 1st of October. To secure the faithful performance of this contract on his part, Campbell executed a bond to Mrs. Keck in the sum of $25,000, signed by himself as principal and several others as sureties, among them, Henry Zarrs, the appellee in this case. Campbell sublet the excavating, masonry, and stonework and plastering to the said Henry Zarrs under a written contract between them, in and by which Zarrs agreed to have all the work in his contract, except the plastering, wholly completed by August 1st, and to have the plastering completed by August 15th. Zarrs sublet the plastering to Peterson & Ryan, and they bought of Spooner R. Howell the materials for the plastering. This suit was brought by Henry Zarrs against the said Samantha Keck, Arthur Campbell, Spooner R. Howell, and Peterson & Ryan to have established by decree of court a lien which he claimed against the said hotel for labor and material furnished therefor under his contract with Campbell, and also to establish a lien against the property for some extras which he alleges he furnished for said hotel on an oral contract with Mrs. Keck. During the progress of the trial, however, it was shown that this claim for extras had been settled and compromised before the bringing of this suit, and it will not be further noticed. Mrs. Keck and Mr. Campbell answered the petition of Zarrs. Peterson & Ryan filed an answer in the nature of a cross bill, claiming a balance due them of $760 for labor and material furnished in the erection of the hotel in pursuance of the contract with Zarrs, and prayed that the same might be declared a lien on the premises of Mrs. Keck. Howell filed an answer in the nature of a cross bill, claiming a balance due him of $391.94 for material furnished by him to Peterson & Ryan, and used by them in the plastering of said building, and prayed that the same might be made a lien...