Wetherill v. Ohlendorf
Wetherill v. Ohlendorf
Opinion of the Court
The proof is quite satisfactory in this case, that the lumber delivered by Ohlendorf was on the credit of Sullivan, the contractor, and to him he must look for payment. No lien is created against the lot, as the owner of it made no contract.
■ A fair interpretation of Gierke’s written undertaking to pay would only bind him to the extent of the lumber delivered by Heeney & Campbell after the date of it. The claim that it included all the lumber before that furnished, is answered by the fact that there is no consideration expressed in the writing for the undertaking, and if there was, it would not create a lien on the premises. A mechanic’s lien, or that'of the material-men, is statutory, peculiar in itself, and can only be claimed when the case is brought within the statute.
There is no pretense for this action. The judgment is reversed.
Judgment reversed.
Reference
- Full Case Name
- James N. Wetherill v. William Ohlendorf
- Cited By
- 2 cases
- Status
- Published
- Syllabus
- 1. Mechanic’s lien—whether it exists. Where a party contracts to build a house, and other parties furnish materials, which are used in the building, on the credit of the contractor, the material-men have no lien on the building for the materials so furnished. 2. Same—construction of an agreement—lien must he created under the statute. Heeney & Campbell furnished, on the credit of a party who had contracted to build a house for one Gierke, materials which were used in the building of Gierke’s house. When the house was partially completed, the contractor having abandoned his contract, Gierke executed the following agreement in writing: “This is to certify that I, H. Gierke, hold myself responsible for all lumber and materials furnished by Heeney & Campbell for tiie erection of store on Halsted street and in course of erection, and will pay all of our account for said- store when the building is complete”: Held, that a fair interpretation of the agreement would only bind Gierke to t.lie extent of materials delivered after its date—the claim that it included all the materials before that time furnished being answered by the fact that there was no consideration expressed in the writing for the undertaking. 3. And if there had been a consideration expressed, it would not have created a lien on the premises for the materials previously furnished,—as a mechanic’s lien, dr that of the material-men, being statutory, and peculiar in itself, can only be claimed when the case is brought within the statute.