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Moesser v. Lumber Co.


[Hamilton (1st) Court of Appeals, October, 1915.]

Jones, Jones and Gorman, JJ.

(Jones, E. H., J., not sitting.)


Owner Need not Stop Payment of Checks to Subcontractors Mailed before but on Same Day Mechanic's Lien Filed if Balance Due on Building Exceeds Sum of Checks and Mechanic's Lien.

An owner, mailing checks to certain subcontractors and material men on the day of the filing of a mechanic's lien by another subcontractor, is not required to stop payment on the checks if the amount due for construction of the building is not less than the amount of the checks plus the amount of the lien; but subcontractors and material men who did not file with the owner itemized statements of the amounts due them within ten days after the filing of the lien are not entitled to pro rate with the lien holder or the payees of the checks in the amount remaining due.


C. W. Hoffman and Chas. M. Leslie, for plaintiff. in error. W. F. Chambers, Hunt, Bennett & Utter, Miller & Foster, W. A. Rinckhoff, Wolf & Bailey, Tuttle & Ross and Hackett, Yeatman & Harris, for defendants in error.

JONES, O. B., J.

The proceeding below was brought by the Enterprise Lumber Company seeking to recover the amount due to it for materials furnished for the construction of a house by the Louis Belmont Company as head contractor for Louis Moesser, plaintiff in error herein.

The Enterprise Lumber Company filed a claim as material man, in accordance with Sec. 8324 G. C.. There is no dispute but that it followed the statute and perfected a material man's or subcontractor's lien upon the balance due from the owner for the construction of said house. This affidavit and notice to the owner thereunder were filed April 10, 1913, and the amount

Hamilton County Appeals.

found due to the Enterprise Lumber Company thereunder was $483.24, with interest.

On the day previous to the filing of this notice plaintiff in error claims to have drawn checks to certain subcontractors and material men amounting to $550.15 which were put in the mail on the morning of April 10, 1913. If this were done as claimed, before receipt of notice from the Enterprise Lumber Company, it was still within the power of plaintiff in error to have stopped payment upon these checks if the amounts covered by, them would reduce the amount due for the construction of said house to a sum less than the amount claimed by the subcontractor's lien. The question is raised between the parties as to whether these checks were actually mailed before the notice was filed, but as the amount found to be due in addition to the amount of these checks is larger than that due the Enterprise Lumber Company, it becomes immaterial as to it, whether they were beyond the control of plaintiff in error before the receipt of the notice served upon him for said Enterprise Lumber Company's lien.

Under the terms of Sec. 8328 G. C., in order that other subcontractors might be permitted to pro rate with the Enterprise Lumber Company it was necessary for them, within ten days from the date of the filing of the lien by the Enterprise Lumber Company with the county recorder, to file sworn and itemized statements of their several accounts with the owner. The record shows that no such statement was filed by any of the subcontractors who are parties herein, earlier than April 30, 1913. Therefore, under the terms of the statute, which has been so construed in the case of Hayden Saddlery Hardware Co. v. Slade, 2 Circ. Dec. 38 (3 R. 67), the Enterprise Lumber Company was entitled to be first paid out of the fund; and as the checks of the owner aggregating $550.15, which were mailed April 10, 1913, were then due and were paid before any statements as to other claims were filed, in accordance with the terms of Sec. 8328 G. C., these payments made by these checks must be treated as proper payments as far as all the other subcontractors and material men are concerned.

Moesser v. Lumber Co.

The judgment of the lower court was, therefore, erroneous in finding that the owner must be deemed as having in his hands $1,103.40 subject to the payment of claims. The payments made by the owner's checks of April 10, 1913, should have been deducted from this amount and the balance with interest, only, would be available for the claims of all sub-contractors and material men, out of which the Enterprise Lumber Company must first be paid and the balance pro rated among other claims.

The judgment of the lower court is therefore reversed and the cause remanded for further proceedings.

Gorman, J., concurs.


[Hamilton (1st) Circuit Court, June 3, 1911.]

Smith, Swing and Jones, JJ.


Order of Admission of Evidence in Bastardy Case Discretionary with Court.

In the trial of a bastardy case as provided by Sec. 12122 G. C., failure to read before complainant rests the transcript of the evidence given by the complainant before the magistrate, does not constitute prejudicial error where the reading of the transcript occurred before the defendant was placed on the witness stand.


Thomas H. Kelley, for plaintiff in error.
Jos. T. Harrison, for defendant in error.


The jury found the defendant below guilty as charged in the complaint after hearing the evidence adduced and proper instructions by the court.

*Affirmed, no op., Campbell v. State, 88 O. S. 586.

Hamilton County Circuit.

We think the failure of plaintiff below to read the transcript of complainant's evidence, as given before the magistrate, at the proper time is not prejudicial error.

The transcript was referred to in the trial by counsel before plaintiff rested and it was within the discretion of the court to permit it to be read later, especially as it was read before defendant placed a witness on the stand.

The evidence is conflicting, as it always is in cases of this nature. The jury heard it with full opportunity to note the interest and demeanor of the witnesses and were the sole judges of the reliability and credibility of the testimony offered. Finding no error the judgment will be affirmed. Smith and Swing, JJ., concur.


[Hamilton (1st) Court of Appeals, July 19, 1915.]

Jones, Jones and Gorman, JJ.


(3 Cases.)

1. Reference to Master Commissioner Proper in Equitable Proceeding to Construe and Enforce Contract and Accounting.

A suit to construe and enforce a contract and for an accounting thereunder, for a decree for the reconveyance of realty and for general relief is a cause in equity, all matters being triable to a court and not a jury, comes within the provisions of Sec. 11490 G. C. and reference to a master commissioner is not an abuse of discretion by the court.

2. Judgment Debtor Contrary to Judgment Creditor Cannot Compel Foreclosure Sale.

A judgment debtor in a foreclosure suit cannot compel a sale under decree of foreclosure and order of sale contrary to the wishes and right of a judgment creditor who is the owner of the judgment and mortgage in issue, and the trial court properly on application of the judgment creditor properly ordered recalls of orders of sale issued upon the precipe of the judgment debtor therein.

3. Prayer for Equitable Relief Effective to Cure Technical Defects in Terms of Pleading Setting Out Salient Facts in Issue.

A contract to reconvey property to grantor upon payment of money advanced or loaned by grantee acting as attorney for

Krippendorf v. Ormsby.

the grantor is in the nature of a mortgage; hence, notwithstanding the petition in an action to reconvey and for an accounting, and praying for specific performance and equitable relief does not in terms designate the contract as a mortgage, nor set out the relation of attorney and client, if it sets forth the salient terms of the contract and does in fact state a cause of action for a redemption of the mortgage and shows that the grantee holds the property in trust for grantor, the court may, under the general prayer for equitable relief, order the reconveyance and an accounting.


J. M. Dawson, for Krippendorf.

J. C. Martin, and Wm. M. Fridman, for Helen M. Ormsby.
Young & Young, for Geo. S. Ormsby.

JONES, O. B., J.

Three proceedings in error have been brought in this court, growing out of an action in the superior court of Cincinnati in which the defendant in error was plaintiff, and the plaintiff in error was defendant, and in which plaintiff sought to require the defendant to reconvey to her certain real estate which she had conveyed to him under a certain contract in accordance with the terms of which he was to advance certain money and out of it to pay certain liens upon said real estate, and to hold and rent same and out of the income pay taxes, make repairs and improvements, and the end of three years upon repayment to him of the amount advanced to reconvey said real estate to her.

The University of Wooster was made party defendant and filed a cross petition setting up a mortgage made by the defendant below to it to secure a loan of $5,000 upon lot 49 which was the improved portion of said real estate, and a judgment was afterwards entered on said cross petition finding the amount due under said mortgage and ordering the foreclosure of same and sale of the premises covered by the mortgage on the failure to pay the amount so found due.

The case proceeded as between the original plaintiff and defendant, and was heard upon her second amended petition, the answer of defendant thereto, and the reply to said answer. Upon said hearing the court decided in favor of the plaintiff

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