McHenry v. Knickerbacker

Indiana Supreme Court

McHenry v. Knickerbacker

27 N.E. 430, 128 Ind. 77, 1891 Ind. LEXIS 275

CourtIndiana Supreme Court

DecidedApril 11, 1891

DocketNo. 14,825

StatusPublished

Cited by9 cases

This text of 27 N.E. 430 (McHenry v. Knickerbacker) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McHenry v. Knickerbacker, 27 N.E. 430, 128 Ind. 77, 1891 Ind. LEXIS 275 (Ind. 1891).

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Opinion

Elliott, J.

The appellant, in his complaint, alleges that he furnished materials for the erection of a building which John S. Morris had undertaken to erect for the appellees, and that notice of his intention to hold a lien was duly given and recorded. The answer of the appellees sets forth the contract with Morris, and a bond executed by the appellant and others to secure the performance of the contract by Morris, the principal contractor. The contract with Morris provided that he should furnish and pay for all materials used in the building; and further provided that the appellees might, at any time, make such alterations in the plan, or work, as they should deem proper.

We have no doubt as to the sufficiency of the answer. [78]*78The appellant undertook that the principal contractor should furnish and pay for all materials used in the building, and he can not, in the face of this undertaking, demand compensation for materials furnished at the request of the contractor. It would violate the plainest principles of justice to permit the appellant to enforce a lien, for it would allow him to exact payment for property which he had explicitly promised should be paid for by another.

Filed April 11, 1891.

The reply endeavors to avoid the answer by showing that changes were made by the appellees ; but the effort is fruitless. The contract between Morris and the appellees gave them the right to make such changes as they deemed necessary, and they can not be made to suffer for doing what their contract gave them a right to do. If there had been no right to make changes, the decision in Judah v. Zimmerman, 22 Ind. 388, would exert an important influence ; but the contract expressly confers such a right, and hence that case is not relevant to the matter here in dispute.

The effect of the legal principles we have stated is not changed by the fact that the appellant was one of several sureties, for he is precluded from doing what his contract forbids, and so are his co-sureties. No one of them, nor all combined, can enforce payment for materials used in the construction of the building, for the plain and unanswerable reason that they have undertaken that their principal shall pay for all materials and work.

Judgment affirmed.

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Elliott, J.

The appellant, in his complaint, alleges that he furnished materials for the erection of a building which John S. Morris had undertaken to erect for the appellees, and that notice of his intention to hold a lien was duly given and recorded. The answer of the appellees sets forth the contract with Morris, and a bond executed by the appellant and others to secure the performance of the contract by Morris, the principal contractor. The contract with Morris provided that he should furnish and pay for all materials used in the building; and further provided that the appellees might, at any time, make such alterations in the plan, or work, as they should deem proper.

We have no doubt as to the sufficiency of the answer. [78]*78The appellant undertook that the principal contractor should furnish and pay for all materials used in the building, and he can not, in the face of this undertaking, demand compensation for materials furnished at the request of the contractor. It would violate the plainest principles of justice to permit the appellant to enforce a lien, for it would allow him to exact payment for property which he had explicitly promised should be paid for by another.

Filed April 11, 1891.

The reply endeavors to avoid the answer by showing that changes were made by the appellees ; but the effort is fruitless. The contract between Morris and the appellees gave them the right to make such changes as they deemed necessary, and they can not be made to suffer for doing what their contract gave them a right to do. If there had been no right to make changes, the decision in Judah v. Zimmerman, 22 Ind. 388, would exert an important influence ; but the contract expressly confers such a right, and hence that case is not relevant to the matter here in dispute.

The effect of the legal principles we have stated is not changed by the fact that the appellant was one of several sureties, for he is precluded from doing what his contract forbids, and so are his co-sureties. No one of them, nor all combined, can enforce payment for materials used in the construction of the building, for the plain and unanswerable reason that they have undertaken that their principal shall pay for all materials and work.

Judgment affirmed.

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Bluebook (online)

27 N.E. 430, 128 Ind. 77, 1891 Ind. LEXIS 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mchenry-v-knickerbacker-ind-1891.

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