Horton v. Tabitha Home

169 N.W. 2, 102 Neb. 677, 1918 Neb. LEXIS 132

• Court: Nebraska Supreme Court
• Decided: October 5, 1918
• Docket: No. 20136
• Status: Published

Opinions

Cornish, J.

This suit was originally commenced by the plaintiff and cross-petitioners who furnished material for improvements made on the main- building of Tabitha Home, a charitable institution, to foreclose tbeir me-' chanics ’ liens. The trial court allowed the liens. The defendant Tabitha Home appealed. Our opinion is reported in 95 Neb. 491. In reversing the case we held that the. improvements were made for the construction of a hospital at the home; that the home is a public charity'organized “to furnish a home for the aged and infirm, and a home for indigent orphans to be given a common school education to fit them to become nurses and attendants on orphan homes, and similar institutions,” and under its charter would not be empowered to expend 'its funds or property for the purpose of maintaining a hospital; and, further, that it did not appear from the record that the trustees of the institution had, as such, contracted to make it liable for the improvements. "We further held that, no application having been made to the district court for authority to so expend the funds of the institution, a mechanics' lien could in no event attach' to the real estate of the institution. On a retrial of the case, the trial court found against the materialmen. They have appealed the case, contending that they are entitled to judgment against the institution for the value of material furnished.

We are of opinion that the question of the right of the. materialmen to a judgment against the defendant for' the value of the material furnished was passed upon in our former opinion and judgment, which decision has become the law of the case. We are of opinion, too, that we were right in holding that the trustees of the' corporation would not be empowered to contract for the expenditure of its funds to build a hospital, and that persons dealing with a public charity are bound to know the extent of its powers.

It. is insisted,. however, that, these materialmen all supposed that they were dealing with the home in improving its main building, which was at the time and has since been used by its inmates; that the improvements made and material furnished were more or less for the benefit of the home. We are of opinion that the record does show that these contentions are true. It is further insisted that the officers have, as they promised to do, raised a fund for the satisfaction of the claims of these materialmen. Tlie evidence does not show the amount of it, if any has been raised. The materialmen have at all times asked for such equitable relief as good conscience may require. It would appear from the record that, the benefits of these improvements having, in part at least, gone to the home, it ought to make its best endeavor , to pay for such improvements as it has had and as were necessary to the home.

We have concluded to remand this case to the district court, with leave to the parties to amend their pleadings so that the exact value of- improvements beneficial and necessary to the home may he determined, and, if it is further found that the home has made provision for or has'raised' a fund donated for the purpose of paying the value of such improvements, then an order should he made requiring the application of any fund so raised pro rata to the payment of the claims of these materialmen, so far as the court may find the improvements made were necessary and beneficial to the home for the purposes for which it was established under the law.

Reversed and remanded.

Rose, J., not sitting.