Isenman v. Fugate

Thompson, J.,

delivered the opinion of the court.

This was an action by a material man to enforce a lien against a lot of ground belonging to the defendant Fugate, for certain lumber furnished by the plaintiff for the erection of a building thereon. The cause was tried in the circuit court without a jury and the court rendered a verdict and judgment in favor of the plaintiff and against the defendant Hawn, who was the contractor for the erection of the building, but in favor of •the defendant Fugate, refusing to establish the plaintiff ’ s lien upon the property. The plaintiff appeals to this court. The only contest made on behalf of the ■defendants in this court is made by the defendant Fugate.

No instructions were asked for by either party and none were given. The erro rs assigned are : (1) That the court erred in refusing to sustain plaintiff’s motion to strike out a portion of the answer. (2) That the court erred in admitting any testimony in support of the defense therein -set up. (8) That the court erred in its conclusion upon the evidence that the plaintiff had waived his lien as a material man. (4) That the pourt erred in giving judgment for the defendant Fugate.

It is perceived that all these assignments of error resolve themselves into two questions: (1) Whether the special defense set up in the answer was good as matter of law. (2) Whether, if it was good as matter of law, there was substantial evidence tending to support it. No other questions arise upon the record.

I. The substance of the special defense was that Hawn, the contractor, was indebted to Fugate, the owner of the property ; that it was arranged between Fugate and Hawn that Hawn should work out his indebtedness to Fugate by erecting the building for Fugate and that it was agreed, among Fugate, Hawn, and the plaintiff, that the plaintiff would look exclusively to Hawn for his pay for the lumber which he should furnish for the erection of the building, and that he would not file a lien upon the building therefor ; and finally, that it was upon the faith of this agreement, and upon this ground only, that the defendant Fugate permitted the erection of the building to go on. This defense, if made out, shows a distinct waiver on the part of the defendant of his right to enforce a material man’s lien against the building. It shows that this waiver took the form of a contract supported by a distinct consideration, namely, the consideration that the other contracting parties would take the lumber from him and that the erection of the building should go on, whereby the plaintiff would obtain a sale for the lumber required in its erection. It is not, of course, claimed that a material man cannot waive his right to a mechanic’s lien, and it therefore follows that the court committed no error in overruling the plaintiff’s motion to strike out so much of the answer as set up this special defense.

II. The remaining question, whether this defense was supported by substantial evidence, must clearly be resolved against the appellant. This is a case at law. We neither rehear the case as chancellors nor can we assume the office of jurors. It is sufficient for us to see that there was substantial evidence tending to establish this special defense. There was substantial and distinct evidence to that end.

The judgment must accordingly be affirmed. It is so ordered.

All the judges concur.