Long v. Sphaler

The bill of complaint alleges that the appellees (complainants below) furnished material to the appellant Kirkland (one of defendants below) for improvements on the building of the appellant Long (the co-defendant below) — Kirkland being the contractor *Page 122 performing the work on such building. That a written notice was served on the owner Long that such material had been furnished to Kirkland to be used in repairing and improving the building on the property of the owner Long. The answer of the defendant did not specifically deny the service of such written notice, but at least implies that such notice was served by these words: "That at the time of the service of the notice and the filing of the lien as alleged in the bill of complaint, this defendant was not due the defendant Kirkland any amount whatever, but on the contrary the defendant Kirkland is due and was due money to this respondent; that no cautionary notice has been filed on this defendant in time to stop any amount due Kirkland." This answer at best amounts to no more than a denial that notice was served (the word used by defendant being "filed") in time to stop any amount due Kirkland by Long. This answer must therefore be taken as an admission of the positive statement in the bill that written notice was served on the defendant, and it became unnecessary to further prove it even though it might have been permissible to have done so. It then remains to consider whether or not the materials were furnished Kirkland by the complainants below, and what amount if any was owing to the defendant Kirkland by the defendant owner Long at the time of the service of the notice alleged in the bill. The evidence is clear as to the furnishing of the materials and the amount due therefor by Kirkland. The evidence is not so clear as to what amount was due to Kirkland by Long, but after the case had been referred to the master the second time to take proof beyond this point the chancellor determined from the evidence that Long was indebted to Kirkland in a certain amount for which amount the complainants were entitled to a lien upon the property of Long. This conclusion *Page 123 of the Circuit Judge was supported by substantial evidence and therefore should not be disturbed, it not appearing to be clearly wrong on the whole evidence. The decree is affirmed.