Foerder v. Wesner

Day, J. I. It is clearly established that the plaintiff performed labor upon the building in question. The principal inquiry is whether this labor was performed as a partner or as an employe of the defendant Wesner. We have carefully examined the evidence and the arguments of counsel upon this point. Some portions of the testimony are not fully reconcilable with either view of the question. The defendant Wesner alleges the partnership, and upon him is the burden of establishing it. We are. of opinion that there is not a preponderance of evidence in his favor, and that the finding of the referee is correct. The facts that the written contract for the erection of the building was executed in the name of Wesner alone, and that he drew all the money upon the contract, and borrowed in his own name money to carry on the work, are strongly against the existence of a partnership. It must, upon the other hand, be admitted that portions of the testimony tend strongly to establish a partnership, [159] but not sufficiently, as we think, to create a preponderance in defendant’s favor. , 1. MECHANIC’S eiiutiodto°-is tract for ?£•' ^01’- II. It is insisted that, if no contract of partnership was made, the contract which the law implies upon the part of Wesner to pay Foerder what his services were r J , reasonably worth will not support and justify thee stablishment and enforcement of a mechanic’s lien. It is said that all such a contract imports is that the labor was done on the building, and this alone is not sufficient; there must also be proof to establish the further fact that the labor was furnished specially, or for the purpose of being used for or about the building. Citing Cotes & Davies v. Shorey, 8 Iowa, 416. But where labor is done upon a building it is impossible that it could have been done for the purpose of being used elsewhere, so that proof of the performance of the labor is proof that it was furnished for the purpose of being used for or about the building. The case is a very different one from the furnishing of materials, which, although used in the erection of a building, may not have been sold for that purpose. That a mechanic’s lien may be enforced upon an implied contract was held by this court in Neilson, Benton & O'Donnel v. The Iowa Eastern R. Co., 51 Iowa, 184. 2._:_.. foreman. III. The plaintiff had charge of the hands employed upon the brick work of the building, and, in addition to the performanceof actual labor, he acted as overseer or foreman. It is claimed that for, his services as overseer or foreman he is not entitled to a lien, and that, as there is no proof of the value of his services except in gross, he can have no lien for any portion of his services. We need not determine whether a mere overseer would be entitled to a lien. We feel satisfied that the plaintiff should not be denied a lien merely from the fact that, in addition to the performance of labor, he acted as an overseer. We are of opinion that the judgmeut of the court* is right. Affirmed.