Fairbanks, Morse & Co. v. Simmons

173 P. 277, 103 Kan. 202, 1918 Kan. LEXIS 223

• Court: Supreme Court of Kansas
• Decided: June 8, 1918
• Docket: No. 21,409
• Status: Published

Opinion

The opinion of the court was delivered by

Marshall, J.:

Defendants George W. Simmons and Cora Simmons appeal from a judgment obtained against them foreclosing a mechanic’s lien. . George W. Simmons contracted with Dennis D. Doty for the construction of a pumping plant on certain real property owned by defendants Simmons in Finney County. Doty was to receive his compensation on the completion of the plant and on its successful operation. Doty testified that he purchased from the plaintiff all the material listed in the itemized account attached to the petition; that the materia^ was used in the installation of the pumping plant; and that he ordered the material for that plant.

The amended answer of George W. Simmons and of his wife, Cora Simmons, contained a general denial, and alleged that Doty never performed his contract and never completed the plant, and that they never became indebted to Doty on the contract. The amended answer also alleged that they were damaged in the sum of $2,500 by Doty’s failure to perform his contract.

1. On April 29, 1916, a demurrer was sustained to all of the amended answer, except the general denial. The cause was tried on September 18, 1916, and judgment was then rendered in favor of the plaintiff for $439.16 and for foreclosure of the mechanic’s lien. Notice of appeal was served on May 4, 1917 —almost a year after the ruling on the demurrer. George W. Simmons and Cora Simmons argue that the court erred in sustaining the demurrer to their amended answer. The plaintiff contends that the error, if any there was, ,in sustaining the demurrer cannot be considered on this appeal, for the reason that a ruling on a demurrer cannot be reviewed if an appeal from that ruling is not taken within six months thereafter. The appeal was not taken in time, and the plaintiff’s contention must be sustained. (Slimmer v. Rice, 99 Kan. 99,160 Pac. 984, and other decisions there cited; Civ. Code, § 572.)

2. Complaint is made of the admission of evidence. That evidence was as follows:

“Q. You had ordered material from this same concern with respect and for use in a good many other jobs too, had you? A. Yes, sir.

.“Q. And speaking with respect to those other jobs, state if the company kept its accounts against you separately for each separate job? A. Yes, sir. Each job was kept separate.

“Q. And the goods ordered for one job were never mixed or mingled with the order for other jobs? A., No, sir.”

That evidence was admissible for the purpose of showing that the material was purchased for, and was used in, the construction of the pumping plant on the land of defendants Simmons.

3. A demurrer to the plaintiff’s evidence was overruled. It is contended that the evidence failed to prove that the material was sold to Doty with the intention and understanding that it should be used in the construction of the pumping plant on the land of his codefendants Simmons. It is also contended that the evidence failed to show that the plaintiff had any notice of the contract between Doty and George W. Simmons. From these contentions, it is argued that it necessarily follows that the plaintiff sold the material to Doty on his own credit.

In addition to the evidence already set out, Doty testified that the material was ordered for this particular job, and that he thought the order for the material stated that it was to be used in the construction of the plant. As against a demurrer thereto, the evidence was sufficient to prove that the material was sold with the intention and understanding on the part of the plaintiff that it would be used in the construction of the pumping plant. It was not necessary to prove that the plaintiff had either notice or knowledge of the contract between Doty and George W. Simmons.

4. A jury was called, and it answered four special questions. The court set aside the answers to the first and the fourth questions. It is argued that this was error. The answer to this argument is, that in this action the findings of the jury were only advisory, and the court was not compelled to accept the findings. The court could make findings of its own.. The court found “that the allegations of the plaintiff’s petition are true and that there is due the plaintiff upon the mechanic’s lien statement sued on herein the sum of $439.16,” and found that the amount named, with interest thereon, was a lien on. the real property described in the petition.

The judgment is affirmed.