Livesey v. Hamilton , 47 Neb. 644 ( 1896 )

Ryan, C.

The appellants in this case are James G. Winstanley and Jacob B. Emminger, purchasers of certain real property from John R. and Francis Hamilton, .by whom improvements thereof had been previously contracted for. The case was begun in the district court of Douglas county by Henry Livesey, as the assignee of a mechanic’s lien held by John McGowan on account of services rendered and material furnished by him. The contract between. McGowan and John R. and Francis A. Hamilton consisted of an oral acceptance of a written bid for doing certain of the work specified and for furnishing such material as therefor should be required. There was no necessity that this -mere bid should be attached to the claim for a lien, for it was not a written contract.

It is urged that Livesey cannot maintain an action as the assignee of the claim for a lien, because such lien, as alleged, was not perfected when the assignment thereof was made. The filing was of date October 22, 1891. The assignment was made February 25 thereafter, so that the facts are not correctly assumed for the purposes of this argument. Before the claim for a lien was filed J. R. Hamilton gave his note for $500, a part of the amount due to John McGowan, who indorsed the same to Henry Livesey, by whom it was discounted at a bank. Not being' paid at maturity the note was taken up by Henry Livesey, who now holds the same as owner. As already stated, McGowan transferred to Henry Livesey his whole claim for a lien as an entirety. We, therefore, cannot understand how this assignment can be injuriously affected by the mere fact that Livesey holds a note for $500 evidencing as due him a part of the claim in respect to which the mechanic’s lien held by him was filed. There was no evidence that this note was given or accepted as payment. Therefore, no good reason exists for treating it as a pro tanto satisfaction of the lien assigned to Livesey.

There was made a defendant Christian Specht, by whom there was filed a cross-petition in which he alleged that under a verbal agreement he had furnished material and performed labor in improving the real property above referred to; that after allowing all credits for payments made there still remained due $280. There was in the cross-petition of Christian Specht this language: “This defendant further represents that as a part of said indebtedness the said John R. Hamilton executed and delivered to this defendant by the name, style, and description of Western Cornice Works, his promissory note for the principal sum of $265,” etc. There are urged in opposition to the enforcement of Mr. Specht’s lien the objections that the above described note had been by him used as collaterál security, and that whatever claim really exists is in favor of the Western Cornice Works and not in favor of Specht. As indicated by the language above quoted, the designation “Western Cornice Works” was not employed to indicate a corporation or company, but it was a picturesque and fanciful description of Mr. Specht, invented and used by himself. The evidence shows that he was the sole proprietor and manager of the business and property and controlled it absolutely, although in doing so its proprietorship and management were referred to by him as that of the “Western Cornice Works.” By this fiction no one was deceived, and it is not suggested that any one interested was not aware of the identity of Christian Specht with the Western Cornice Works. There was, therefore, no substantial reason for not granting the relief prayed by Mr. Specht, as was done in the .district court, for no other objection has been urged except that there was not set up in connection with the claim for a mechanic’s lien a written contract with Mr. Specht. This objection is of the same unsubstantial character as that which, in this action, was set up adversely to Henry Livesey, and must therefore be held unavailing.

No other question is discussed by the appellants, and the judgment of the district court is

Affirmed.