Sloman v. Spellman , 42 Neb. 165 ( 1894 )

Ragan, C.

On the 4th day of February, 1890, William H. Spell-man filed in the office of the register of deeds of Douglas county, Nebraska, a duly verified account of certain items of material and labor which he alleged that he had furnished Fannie M. Sloman in pursuance of a verbal contract made with her for the plumbing and gas-fitting of her residence on lot 2, in block 10, in West Omaha Addition to the city of Omaha, and claimed a lien on said real estate for said labor and material so alleged to have been furnished. On the 27th day of March, 1890, Fannie M. Sloman filed her petition in the district court of Douglas county against said William H. Spellman, alleging, in substance, that on or about the 1st day of July, 1889, she, Mrs. Sloman, entered into a verbal contract with Spellman, in and by which he agreed to furnish the material and do the plumbing and gas-fitting upon a residence she was then erecting on said lot; that Spellman agreed to furnish such labor and material at the actual cost thereof, with fifteen per cent added; that Spellman represented that the actual cost of said labor and material with fifteen per cent added would not exceed t.he sum of $800; that in full payment of the labor and material Spellman might furnish her under the contract, she agreed to convey him, by a deed of general warranty, lot 13, in block 9, Jerome Park Addition to the city of Omaha, subject to certain incumbrances, and that Spellman agreed to accept Mrs. Sloman’s conveyance of said lot in full payment of whatever labor and material he should furnish her under the contract; that she had duly tendered to Spellman a warranty deed of said lot in Jerome Park Addition in payment for the work and material which Spellman had furnished under his contract with her; that she had accompanied such deed and tender with an abstract of title showing that she had a good estate in fee-simple in the lot; that Spellman had refused to accept the conveyance of said lot in Jerome Park Addition in payment of the labor and material he had furnished her; that he had filed in the office of the register of deeds a verified account of items of labor and material which he had furnished for her residence under his contract, and was wrongfully claiming a lien upon her real estate for the amount of such labor and material. She prayed for an accounting with Spellman with, respect to the labor and material which he had furnished towards plumbing and gas-fitting her residence, that.the amount justly due Spellman on account thereof might be determined, and that he be required by decree of court to accept in payment of the amount due him the deed for the lot in Jerome Park Addition, and for a cancellation of the verified account of items of labor and material filed by Spellman in the office of the register of deeds. Spellman, by his answer, admitted that he entered into a verbal contract with Mrs. Sloman, in and by which he was to furnish the labor and material for the plumbing work and gas-fitting of her residence. Pie denied that by the contract he was to have for the same only the actual cost of the labor and material with fifteen per cent added; averred that she was to pay him for such labor and material in cash, as the work progressed, the cost of the material, with fifteen per cent added, and the current wages for journeyman plumber and helper. He expressly denied that he agreed to accept from Mrs. Sloman a conveyance of the Jerome Park Addition lot in payment of the work and labor he should furnish her under his contract. He denied that he represented that the plumbing and gas-fitting would not cost to exceed $800, and alleged that he did said plumbing and gas-fitting in all respects according to the contract with Mrs. Sloman, and that the cost thereof greatly exceeded the sum of $800. By way of a cross-petition he set up the verbal contract with Mrs. Sloman, in and by which he agreed to furnish the labor and material and do the plumbing and gas-fitting work on her residence; alleged that he had complied in all respects with the contract; that within four months of the date of the last item of labor and material furnished under the contract he had made an account in writing of the items of the labor and material furnished thereunder, duly made oath thereto, and filed the same in the office of the register of deeds of Douglas county, claiming a mechanic’s lien upon Mrs. Sloman’s lot and the improvements thereon for such labor and material. He prayed for an accounting of the amount due him from Mrs. Sloman, and that the same might be decreed a lien upon her lot and residence. To this answer Mrs. Sloman filed a reply, consisting of a general denial of all the allegations of new matter in the answer. The district court found all the issues in favor of Spellman, and by decree gave him a lien against the property of Mrs. Sloman for the amount due him from her for the labor and material he had furnished in doing •the plumbing work in her residence, and from this decree Mrs. Sloman appeals to this court.

It will be seen from what has been said that the two material issues in the case were: (1.) Whether Spellman agreed to accept the Jerome Park Addition lot in payment for the labor and material he should furnish Mrs. Sloman. (2.) If he did not, how much was due Spellman from Mrs. Sloman for the labor and material he had furnished her in pursuance of the contract between them? There is no-question of law in the case. It would subserve no useful purpose to quote the evidence or any of it. On every material issue of fact in the case there is an irreconcilable conflict of evidence. We do not know who has told the truth, nor who has been guilty of falsehood. The truth of the matters litigated in this action will probably never be-known. The district judge saw the witnesses, heard them testify, observed their demeanor upon the witness stand, and weighed the conflicting evidence. We cannot say that he reached an incorrect conclusion; and, indeed, if he had found these issues in favor of Mrs. Sloman, the evidence in this record would sustain such finding. The evidence covers nearly seven hundred pages of closely type-written matter. We have patiently and carefully read, studied, and compared all this evidence because it was our duty to-do so; but its study has not been entirely devoid of what might be called a melancholy interest, as it affords a striking object lesson of the uncertainty and unreliability of human testimony. Since we cannot say that the findings made by the district court are not supported by sufficient competent evidence, the decree must be and is

Aeeirmed..