Williamson v. Shank

Comstock, J. Appellee, Daniel Shank, brought this suit against appellants to foreclose a lien for materials furnished by him to W. P. Stowe, a contractor, who had contracted with appellant Williamson for the erection and construction of a dwelling-house on lot No. 64 of the original plat of the town of Angola. The cause was put at issue,- special findings made by the court, conclusions of law stated - thereon, and a decree entered in favor of appellee for $357.02. 1. The first error assigned challenges the sufficiency of each paragraph of the complaint. Upon this specification of error authorities are cited to the effect that a pleading must proceed upon a definite theory, and each theory must be embraced in a separate paragraph. The complaint is in three paragraphs. The first proceeds upon the theory that said lot No. 64 was owned by said defendants, and that the plaintiff sold the materials to W. P. Stowe, who had contracted with the defendants to construct a dwelling-house on said lot. The second, on the theory that John W. Nyee is the owner of said lot; that Williamson, as the agent of said Nyee, entered into the contract with Stowe for the ■erection of a 'dwelling-house on said lot; that under said contract the building was erected and the material for same was furnished by plaintiff for said contractor. The third, upon the theory that said lot was the property of John W. Nyee, and that said Nyee is now estopped from denying liability, [515] or from rendering his property not liable for payment of plaintiff’s claim. Each of these paragraphs proceeds upon a definite theory, and the rule invoked is-not applicable. ii. It is also claimed that neither paragraph of the complaint avers facts showing for whose immediate use or benefit the materials were furnished. The first paragraph alleges that the plaintiffs sold and delivered to W. F. Stowe lumber and other building materials of the value of $317.02, a bill of particulars of which is filed with the complaint; that at the time said lumber and building materials were furnished to said Stowe he was engaged, as a contractor and builder, in the construction for defendants of a new frame dwelling-house, on their lot. No. 64, in the town of Angola, Indiana.; that said lumber and building materials were sold by this plaintiff to said Stowe to be used in the construction of said house, and were used by him in the construction thereof. With some variation of expression, but in substance, these allegations appear in the remaining two paragraphs. They are sufficient to meet the objection. The court stated as conclusions of law: (1) That plaintiff has a lien upon the dwelling-house erected on said lot No. 64 by W. F. Stowe for the defendant Williamson; (2) that plaintiff is entitled to a foreclosure of his lien on said dwelling-house, exclusive of the real estate on which said house stands, for the sum of $317.02, as against all the defendants, and is entitled to have said dwelling-house sold upon a foreclosure of said lien to satisfy the same; (3) that the plaintiff is also entitled to recover his attorneys’ fees in the sum of $40; (4) that the plaintiff is entitled to recover costs. To each of the foregoing conclusions of law, each defendant separately excepted, so that the principal question involved and discussed is: Under the facts specially found' and the conclusions of law, can there be a foreclosure upon the building alone ? The court, among other facts, found that on and prior to September 1, 1904, appellant John W. Nyce was, and still [516] is, the owner in fee simple of said lot No. 64; that at said time no buildings were situated thereon; that the defendant Williamson is the son-in-law of Nyce, and on September 1, 1904, and prior to that date, lived in the same house and ate at the same table as one of his father-in-law’s family; that on said date Williamson entered into a written contract with W. F. Stowe for the erection and construction of a dwelling-house upon said lot, by the terms of which contract Williamsion was to furnish all the hardware, do the painting and varnishing, and pay certain sums of money at stipulated times; that when said contract was entered into the defendant Nyce was present and knew that said house was to be constructed on said lot, and gave his consent to Williamson to construct said dwelling thereon, and placed Williamson in possession, for the purpose of erecting said dwelling-house; that at said time Williamson was not the owner of any property and had no dwelling-house of his own in which to live; that at that time Nyce resided on the opposite side of the street and within a short distance of said lot No. 64, and during the construction of said dwelling-house frequently passed said lot, and at all times knew that the dwelling-house was being constructed, and that said Nyce, at the request of the defendant, assisted in the superintendence of the construction of said house; that all the money ever received by said Stowe for work, labor and material for said dwelling-house was paid him by the father of defendant Williamson. “That defendant John W. Nyce never represented or claimed to be the owner of said dwelling-house or the building, or that he contracted for the same, and now claims no interest in said dwelling-house;” that the materials so furnished were reasonably worth the amounts charged therefor, etc.; that the reasonable attorneys ’ fee is $40. [517] 3. [516] The rights given by mechanics ’ lien statutes were formerly construed with the strictness usual to statutes derogatory of [517] the common law, and while they are still so construed in some states, the more recent trend of the decisions is toward a relaxation of the ancient strictness. While the statute must be strictly followed in securing the lien, the law must be construed in accordance with the principles of substantial justice. A. mechanic’s lien cannot, ordinarily, be imposed upon a building unless in connection with some estate or interest in land on which it is erected. 4 Current Law, p. 618. In some states (Indiana being of the number) the lien may be imposed upon a house alone. Our mechanics’ lien statute provides' that “all persons * * * furnishing material * * * for the erection * * * of any house * * * may have a lien upon the house and upon the interest of the owner of the land on which it stands.” §8295 Burns 1908, Acts 1899, p. 569. 4. This statute provides, then, for a lien, first, upon the house; second, upon the land. The action is in rent. The purpose of the statute is to give all persons performing labor or furnishing material a lien for all work done by them upon any description of property and upon whatever interest the person who caused -the building to be erected has. McGreary v. Osborne (1858), 9 Cal. 119; 2 Current Law, p. 869. 5. The finding’s show that Williamson was the tenant of his father-in-law. That tenancy, so far as shown, has not been terminated. The tenant was put in possession for at least one purpose, to wit, the erection of a building. If it had been agreed that he was to have the use of the building for its erection, or was thus to pay the rent in advance, he would properly have been deemed the agent of the landlord, and the materialman would have been entitled to his lien, and if, without any contract as to rent, the tenant was put in possession by the landlord, with the privilege of erecting a build [518] ing, the materialman is still entitled to his lien upon the building. Under the facts found, appellee was entitled to have his lien foreclosed against the house alone, and neither of the appellants can be heard to complain of the decree. McCarty v. Burnet (1882), 84 Ind. 23; Masow v. Fife (1895), 10 Wash. 528, 39 Pac. 140; Parker v. Hall (1879), 14 Phila. 619. Appellee has assigned cross-errors, but we are of the opinion that the decree gives him all to which he is entitled. Judgment affirmed. Roby, C. J., Hadley, P. J., Myers and Watson, JJ., concur.