Deacon v. Van Nuys

28 N.E. 865, 129 Ind. 580, 1891 Ind. LEXIS 105

• Court: Indiana Supreme Court
• Decided: October 29, 1891
• Docket: No. 15,324
• Status: Published

Opinion

Elliott, J. —

The appellee’s complaint proceeds upon the theory that he furnished materials to the appellant for the construction of a house, and that he is entitled to enforce a material man’s lien. The appellant contests the right asserted by the appellee upon the ground that the materials'were not furnished directly to him, but were furnished to a contractor. The question is, therefore, one of fact to be determined upon the evidence.

The familiar rule that this court will accept as controlling the evidence which the trial court received as trustworthy restricts our investigation to the question: Is there any evidence sustaining the finding of the trial court? We find no difficulty in saying that there is such evidence.

It is true that the materials were originally ordered Uy Carr, the contractor, but they were delivered directly to Deacon, and by him they were taken from the appellee’s place of business. There was, also, other testimony indicating that the sale of the materials Was made to the appellant and not to Carr. We can not overthrow the decision of the trial court for the sole reason that Carr gave the order for the materials. A contractor may order materials for the owner, and if he does so, he is the owner’s , agent. Ordinarily, an order by the.contractor does not bind the owner as the primary promisor, but there may be facts which show that the contractor in giving the order acted for the owner, and that, we think, is true of this case.

Judgment affirmed.