Dodds v. Cavett

Holden, J., delivered the opinion of the court. This suit was instituted by the appellant, Mrs. Anna B. Dodds, against the appellee Cavett and others, to enforce a lien for material furnished in certain buildings located on the land of appellee. The lumber was furnished to ap: pellee and used in the repair and construction of certain buildings W his place, and he gave a note to cover the amount due for the material, which note was assigned to the appellant, Mrs. Dodds, and she filed this suit to recover the amount of the note and to enforce the lien against the buildings for the material for which the note was given. At the trial it developed from the evidence that some of the lumber was used in a commissary building and contiguous house on the premises described in the petition, and other portions of the material were used in other houses and cabins not described in the petition. The petition to enforce the lien did not include any of the houses except the commissary and contiguous house, and when it developed that the lumber had gone into the other houses, not described, plaintiff below moved the court to amend the petition so as to include the houses other than the commissary and contiguous building. This motion was overruled by the court on the ground that more than twelve months had expired since the cause of action against the other houses had accrued. At the conclusion of all the testimony a peremptory instruction was granted the defendant, denying appellant the right to enforce the lien against any of the houses for the material furnished, but peremptorily granted a per [475] sonal judgment against the defendant Cavett for the amount of the note sued on. This action on the part of the court seems to have been based upon the theory that the proof did not definitely show how much of the material went into the commissary and adjacent building, and how much was used in " the construction of the other tenant cabins, and, since the court could not determine for what amount the lien should be enforced against the buildings described in the petition, no judgment could be given for any amount against them. The appellant contends that she should have been allowed to amend her petition so as to include all of the houses in which the material was used; and, second, that the court erred in not permitting her to enforce hex- lien against the two buildings named in the petition for at least that part of the material shown to have gone into them. To make the decision brief on these points, and also on the point raised by the appellee that the assignment of the note to Mrs. Dodds did not carry with it the material-man’s lien, we hold: (1) The court was correct in refusing to permit the amendment so as to include the buildings other than the ones described in the petition, because the' right to go against the buildings not included in the petition was barred by the twelve months’ limitation at the time the petition was sought to be amended. (2) It is our opinion, after an examination of the testimony in the record, the proof is sufficiently definite as to the amount and value of the material that went into the commissary and adjacent building to warrant a judgment for the lien against them only to that extent. (3) We think the note given for the material and assigned to appellant carried with it the statutory lien against the buildings for the material used in their construction. [476] Therefore it is-our conclusion that the lower court erred in granting a peremptory instruction against the plaintiff, which denied her the right to enforce her lien for the material which went into the two buildings named in the petition. ' We shall reverse the judgment, and remand the case, for a determination of the question of the amount due for material used in the two buildings against which the statutory lien may be enforced.- Reversed and remanded.