Schindler v. Green

BUCKLES, J. This is an action to foreclose a mechanic’s lien. The contract was made by plaintiff with Annie and Maggie Green, daughters of the defendants, and who lived on 'the premises with the parents, defendants. The work consisted of doing the carpenter work in making alterations and adding two rooms to the house in which the defendants lived—one room as basement, twelve by sixteen, and one room above, twelve by sixteen, and a front porch six by sixteen feet. The plastering was. done under another contract, by another party, with which plaintiff had nothing to do. There were no regular plans and specifications, or specifications as to where the doors or windows should be placed, the contract providing that there should be not to exceed six doors and not to exceed ten windows, and the new structure to be built uniformly with the old, to which it was to be an addition; to be plain, at the cost of $403.50 for all material and carpenter work. There were two windows, put in the basement part in front, but they were not set directly under the two windows in the front .of the upper story. The plaintiff .'claimed to have finished his contract and done all that he was required to do thereunder. The defendants and Mr. Devine (the brother of the defendant Margaret Green, and who drew the contract, and who seemed to be acting for defendants) demanded that the windows be changed so as to be directly under the windows above. This the plaintiff refused to do, and defendants thereupon refused to pay the balance of the contract, viz., $303.50, or for the extra work, until plaintiff should change the windows. After plaintiff had finished the job, as he claimed—at least after he had done all the work that he did do, and' furnished all the material he did furnish—the man employed by defendants went on and did the plastering. The plastering was partially completed, if not fully so, when defendants employed another carpenter to change the windows, setting them exactly under the windows above, at a cost to defendants of $7.50. At the trial the plaintiff had judgment, and [231]the appeal is by these defendants from the judgment and from the order denying their motion for a new trial. In the transcript there are thirty-seven specifications of error in the court’s rulings as to the admission of evidence. We have gone over all of these rulings carefully, and, finding no reversible error therein, deem it unnecessary to refer to them further.

The appellant demurred to the complaint on the ground, among others, that there was a misjoinder of parties defendant. The demurrer was overruled, and no exception taken. It is now claimed that no lien could attach to the property until plaintiff should find it impossible to collect his judgment against Annie Green and Maggie Green, who signed the contract. They are not shown to have had any interest whatever in the property. The facts were shown to be as follows: Annie and Maggie Green were the daughters of the defendants, and lived with their parents on the said premises in said house. Devine, who drew the contract and who supervised and superintended the work, was a brother of the defendant Margaret Green, and the other defendant, Thomas Green, could sign his name only with a mark; and that both defendants had actual knowledge of the agreement between plaintiff and Annie and Maggie Green as regards the original contract and also as to the extra work, and they, and each of them, at the time the work was being performed, had actual notice that the work was being performed, and that the plaintiff was performing it. The defendants, and not Annie and Maggie Green, have been the recipients of whatever benefit came from the work of plaintiff, and Annie and Maggie, under all the circumstances named, appear as, and were, only agents for the defendants, and are not, therefore, liable.