Bay Lumber Co. v. Eaton

[363]

PLUMMER, J.

The plaintiff had judgment in an action to foreclose a mechanic’s lien, from which judgment the above-named defendants appeal.

The record shows that Arthur P. Creel, Tommie Creel, his wife; L. Q. Brenson and Cora Brenson, his wife, entered into an agreement with a contractor by the name of Albert M. Eaton for the construction of a building upon certain real estate belonging to the appellants; that thereafter, Albert M. Baton, as such contractor, purchased of and from the plaintiff, lumber and materials for use in the construction of said building, to the value of $1563.04, upon which there was a credit of $151.12, leaving due the plaintiff the sum of $1411.92. The court found that the lumbei? furnished by the plaintiff was used in the construction of the building belonging to the defendants, and that plaintiff was entitled to a foreclosure of the mechanic’s lien filed by the plaintiff, and directed sale of the lot upon which the building was erected, to satisfy the claim of the plaintiff.

Upon this appeal two grounds only are urged for reversal, to wit: That the testimony does not show that the lumber furnished by the plaintiff was used by the contractor Baton, and entered into the erection of the building for the defendants, and that payments made by the defendants to the contractor should have been applied toward payment for the materials furnished by the plaintiff to the contractor, for the construction of the building.

A short recitation of the testimony, however, will show that the finding of the court to the effect that the materials furnished by the plaintiff were used in the construction of the building, and became a part thereof, is amply supported. The testimony of the foreman on the job is as follows: After being shown the delivery slips for the material, forty-five in number, furnished by the plaintiff, the foreman testified as follows: “Q. Will you look at 14819 and going down to the end, which is 16849, will you examine those and then state whether all of them were received on the job, and whether all went into the building? If not, if any are there which you did not receive or not received on the job, or did not go into the building, indicate? A. I find two slips number 14951 and number 15000; both have my signature, and they are both for the same