U. S. Natl. Bank v. Bonacum , 33 Neb. 820 ( 1892 )

Maxwell, Ch. J.

This action was brought in the district court of Lancaster county by the plaintiff against the defendant to enforce a mechanic’s lien for $650 upon lots 7 and 8, block 2, Lavender’s addition to Lincoln, upon which the German Catholic church is erected. The lien is based upon a contract with one H. M. Roth, the pastor of the congregation when the building was being erected, for two furnaces put into said building by one Sullivan. He (Sullivan), after the erection of the furnaces, assigned the account to the plaintiff. Issues were joined by the parties, and on the trial of the cause the court below rendered judgment in favor of the plaintiff for the sum. of $550, from which the defendant appeals. In substance, there are three defenses pleaded to the action: First, that Roth had no authority to bind the church ; second, that the furnaces are defective and of but little value; and third, that they do not constitute such fixtures or appurtenances as will entitle the plaintiff to a mechanic’s lien. Mr. Roth died a few months after the making of the contract. m

It is claimed on behalf of the defendant that the work was performed under a written memorandum or contract set out in the record. This the plaintiff denies, and claims that the work was performed under a verbal contract, and there is testimony supporting this view of the case sufficient to sustain the judgment. It is denied also that Roth was the agent of the church so as to bind it by any contract made by him. The testimony, however, tends to show such agency in the erection of the building. It is true that the church committee had intended to heat the building with stoves and so informed Mr Roth after he had entered into the contract for furnaces, when he said, “I will pay for the whole business myself.” By this we do not understand that any change was to be made with the contractor for the payment of the furnaces. Mr. Roth, evidently, was not satisfied to have the building heated with stoves, and took this mode of showing his dissatisfaction. Had he lived he, no doubt, would have kept his word, and paid for the furnaces, but his promise to the committee did not relieve the church from liability.

2. The judgment shows that by consent of the attorneys of both parties the judge before whom the trial took place personally examined the furnaces, and allowed $100 for all deficiencies therein, which he considered a liberal allowance, and we must so consider it. Evidently the furnaces are in a pretty good condition.

3. A furnace when placed in a building becomes an appurtenance to the same and a mechanic’s lien will attach thereto. It is unnecessary to cite authorities in support of this view. There is no error in the record and the judgment is

Affirmed.

The other judges concur.