Burns v. Carlson

Collins, J. It is undisputed that on October 17, 1890, the plaintiffs, as material men, were entitled to a lien on the premises described in the-complaint, in an amount exceeding $600. The legal title to the property was then in defendant Carlson, to whom plaintiffs had sold the material, but he had in the month of July contracted to sell and convey the same to defendant Fling. It was actually conveyed to the latter October 29, 1890; he assuming a mortgage on the same, executed and delivered by Carlson to the defendant insurance company. A part of the money raised and received by means of this mortgage had been placed in the hands of an attorney to be used in behalf of defendants Fling and mortgagee insurance company in paying off and discharging any lien claims against the property arising by reason of labor performed or materials furnished by plaintiffs and others when erecting a dwelling thereon. Carlson had informed the attorney that the total amount of plaintiffs’ claim for materials was $150, and the latter, according to the findings, had acquiesced in the statement. Thereupon, October 17th, the attorney paid to plaintiffs’ authorized agent said sum of $150, taking a receipt in which the plaintiffs’ lien and right of lien upon the premises for all materials furnished by them was expressly released and waived,, and the release and waiver were required by the attorney as a condition precedent to such payment. 1. The appellants’ claim that the receipt or instrument whereby the lien was released and waived cannot have that effect, because the plaintiffs’ lien or lien right was an interest in land, which could' not be surrendered except in the manner provided in 1878 G-. S. eh. 11, § 10, is singularly without merit. The assertion that the sta-t [72] ■utory right of a mechanic or a material man to enforce a lien is not an estate or interest in the land on which the work of one or the materials of the other may have been performed or furnished need not be supported by argument or illustration. Like other lien rights, it may be lost or abandoned or discharged. The release and waiver now being considered was in writing; it was supported by a money consideration therein expressed, — the money being paid by third parties, who had acquired property rights in the premises; and no good reason exists why the plaintiffs should not abide by it, if their agent, Authier, was authorized to sign the same, or if they have ratified his action. 2. The trial court found that Authier had such authority, and from an examination of the evidence we do not hesitate in saying that the finding was warranted. It is evident, if the testimony of the attorney is to be relied on, that when he accepted the release and waiver, and paid the money, by his own check upon a bank, he had reason to believe, from statements made a day or two before by one of the plaintiffs, that the agent was empowered to release and waive the lien claim; and there were other circumstances, appearing in the •evidence, tending to justify the conclusion of the trial court. Again, the agent promptly informed his principals that he had signed and delivered the release and waiver in order to obtain the money from the attorney, and no objection was made, or repudiation attempted. 3. Counsel insists' that the court erred when permitting defendant Fling to testify that he had a contract for the purchase of the property, this contract being in writing. If this contract was of any importance, the objection urged by counsel may be disposed of by saying that the whole matter seems to have been dropped when counsel stated that he objected to oral testimony respecting the contract. Judgment affirmed. Vanderburgh, J., took no part. • (Opinion published 54 N. W. Rep. 1055.)