Wagner v. Darby

[346] The opinion of the court was delivered by Horton, C. J. This was an action brought by Adam Wagner, assignee of Swift’s Iron and Steel Works, against H. C. Darby and others, to enforce a lien upon certain lots in the city of Columbus, in this state. The plaintiff claimed to have sold H. C. Darby, under a contract, iron amounting to $2,-023.21, on July 13, 1887, for the erection of a stand-pipe on the lots. The plaintiff resided at Newport, Ky., and owned and operated iron mills at -that place. H. C. Darby owned and operated shops at Kansas City, Mo., and kept his general offices there. He was engaged in the manufacturing of steam boilers, in the repairing and rebuilding of second-hand boilers, in the manufacturing of engines, in the erection of stand-pipes, and in the repairing of gas systems. About 50,000 pounds of the iron purchased on July 13, of the value of- $1,325, was used by Darby in the erection of the stand-pipe. The balance of the iron was used by him for other purposes. A trial was had before the court without a jury. No special findings of fact were requested or filed. A personal judgment was rendered in favor of the plaintiff and against Darby for the value of the iron purchased, but a general finding was made against the plaintiff upon the mechanic’s lien, and a judgment entered accordingly. A lien is not acquired by a vendor for materials sold to a contractor, when they are supplied under an ordinary sale on credit, though the contractor may actually use them in building a house or making an improvement. (Clark v. Hall, 10 Kas. 81; Weaver v. Sells, 10 id. 609; Chapin v. Persse Paper Works, 30 Conn. 471; Odd Fellows’ Hall v. Masser, 24 Pa. St. 507; 64 Am. Dec. 675.) The general finding and judgment that the plaintiff had no lien on the lots compels an affirmance, if there is any evidence in the record tending to show that the iron was furnished at Kansas City, Mo., upon the credit of the contractor and not upon that of the building. There is ample evidence sustaining such a view of the case, [347] and therefore the j udgment of the district court must be affirmed. All the Justices concurring.