148 Ind. App. 167 (1970)

264 N.E.2d 111

RAMSEY v. PEOPLES TRUST & SAVINGS BANK ET AL.

No. 20,742.

Court of Appeals of Indiana.

Filed December 2, 1970.

*168 F. Wendell Lensing, of Evansville, for appellant.

William M. Evans, Bose, Buchanan, McKinney & Evans, of Indianapolis, Waldo Hendrickson, of Boonville, for appellee, Peoples Trust & Savings Bank.

No petition for rehearing filed.

*169 CARSON, J.

This action was brought in the Spencer Circuit Court by appellant, as plaintiff below, to foreclose a mechanic's lien upon real estate owned by the Peoples Trust & Savings Bank of Boonville, Indiana. The issues were formed by the appellant's complaint, which complaint alleged work performed by the appellant for both appellees pursuant to appellant's contract with the appellee, Charles Spokane, on real estate owned by appellee-Bank. The complaint alleged breaches of contract by appellees, the balance owing upon the contract, the filing of notice of appellant's intention to hold mechanic's lien upon the real estate and the building thereon belonging to appellee-Bank, and praying recovery of the sum due from appellee-Spokane, costs of the suit, and further praying foreclosure of the lien against the real estate and building of appellee-Bank, and for attorneys' fees, the foreclosure of the lien, the selling of the premises and for application of the proceeds to the satisfaction of the amount due. A special appearance was filed by Charles Spokane, appellee, who then filed a plea in abatement, to which plea in abatement appellant answered, and the court having heard the evidence on the plea in abatement found for the appellant thereon. Counsel for Charles Spokane then asked for permission to withdraw appearance as attorney peoples trust and savings bank boonville appellee, Charles Spokane, and showed the court that appellee-Spokane had filed a voluntary petition in bankruptcy. The court granted permission and appellee-Spokane was defaulted.

To the second and third paragraphs of answer, appellant filed demurrers. Appellant's demurrer to the second paragraph cox login pay bill answer alleged that the said paragraph was not sufficient to constitute a defense to the complaint for the reason that the subject labor was commenced prior to the alleged execution of the no-lien contract and that the execution of such a contract after labor was commenced, did not take away the lien rights. This demurrer to the second paragraph of appellee-Bank's answer was sustained. The demurrer to the first part of the third paragraph of answer gold letter m that the facts alleged were not sufficient to constitute a cause of defense, that the same was predicated upon the proposition that a no-lien contract cannot be effective against a subcontractor who began work prior to the creation of said contract. The appellant alleged that the law of the State of Indiana requires that a no-lien contract be executed, recorded and the job site posted before the commencement of work, and that appellant's rights to a lien could not be extinguished by the subsequent execution of a no-lien contract. The demurrer to the third paragraph of answer was overruled.

This cause was venued to the Spencer Circuit Court and there the appellant filed a reply to the peoples trust and savings bank boonville paragraph of answer of appellees under the provisions of Rule 1-3, supra.

Default judgment was rendered against appellee-Spokane; and final judgment was rendered against appellee-Spokane in the amount of $9,912.22.

*171 Trial was to the court without jury and the court found against the appellant on his complaint against appellee-Bank and awarded appellee-Bank judgment for costs in the action against plaintiff-appellant. The court further found against appellee-Bank on its cross-complaint for damages.

Following the entry of judgment, plaintiff-appellant filed a motion for new trial, with memorandum, on the following grounds:

Appellant's sole assignment of error is the overruling of his motion for a new trial. Various proceedings followed the overruling of the motion for new trial, but they are of no importance to this appeal.

Appellant, in his brief, argues the following five points:

Rule 1-14B, Rules of the Supreme Court of Indiana, 1967 Revision, reads as follows:

Appellant's arguments listed under Points I and III are, therefore, waived in that they are not specified in the memorandum.

Appellant asserts that, nothwithstanding the negative judgment, he may question the sufficiency of the evidence when the decision of the court is based on an affirmative answer (defense) by defendant. McFarland v. Christoff (1950), 120 Ind. App. 416, 424, 92 N.E.2d 867. While we agree with the holding in McFarland, we see no reason to apply it here.

The record does not disclose upon what basis the trial court made its decision. The decision may have been made on the strength of appellee-Bank's argument; however, the decision might also have been based on the weakness of appellant's case. The record is not definitive as to this point, and in the absence of substantial evidence showing that the decision was based upon the affirmative answer of appellee-Bank we have no justification to and cannot apply the law as above set forth in McFarland to the facts we have before us.

The assignment of error to the effect that the decision of the court is contrary to law presents for our consideration the determination of whether or not appellant has demonstrated reversible error under the requirements of the rule laid down in Pokraka v. Lummus Co. (1952), 230 Ind. 523, 532, 104 N.E.2d 669, at 673:

In the plaintiff-appellant's case he chiefly admitted that he had no contract with appellee-Bank; that he saw the no-lien contract between Spokane and the Bank which had been recorded in the County Recorder's office; and that he thought defendant's Exhibit No. 49 might be that contract but that it had been three years since he saw it in the Recorder's office and he could not be certain. This uncertainty on his part is erased, however, since the parties stipulated with reference to the exhibits.

The only real question for our consideration here is whether or not the contract as it existed between Spokane and the Bank met the requirements of the statute which regard to a no-lien contract. Acts 1963, ch. 376, § 1, p. 963, Ind. Stat. Anno., § 43-701, Burns' 1965 Repl., provides in pertinent part as follows:

It usaa flood insurance contact number our opinion that reasonable minds would necessarily arrive at the same conclusion reached by the trier of fact.

We agree with appellant's contention that a waiver of mechanic's lien should be supported by a consideration in order to be effective. 57 C.J.S., Mechanic's Liens, § 223, p. 795. However, we cannot say that the agreement between appellee-Bank and appellee-Spokane violated this fundamental rule of contracts. The paragraph setting out the consideration in the waiver of lien contract between the Bank and Spokane is as follows:

The above paragraph clearly sets out as consideration mutual promises[1] in addition to $1.00 and other good and valuable consideration. While the consideration of $1.00 and other good and valuable consideration may not be equivalent to the value of the waiver, sufficient consideration does exist in our opinion. It is not necessary that a consideration and a promise should be equivalent in actual value. Knarr v. The Sand Peoples trust and savings bank boonville Turnpike Co. (1873), 45 Ind. 278.

Appellant's final argument under this point is that the contract for waiver of lien lacks mutuality and is thus void. Our Supreme Court in Jordan v. Indianapolis Water Co. (1902), 159 Ind. 337, at 346, 64 N.E. 680, at 683, stated:

*175 It is our opinion the contract in question contained adequate consideration and, thus, appellant's argument under Point II is untenable.

Under appellant's fourth point we are left to determine whether appellant began work on the construction site before the signing of the waiver of lien contract.

Appellant argues that work began when he moved his machinery to the site of construction on October 15, 1962. Our Supreme Court in Potter Mfg. Co. v. A.B. Meyer & Co., (1909), 171 Ind. 513, 517, 86 N.E. 837, held that any laborer on a structure has a right to a mechanic's lien for such labor and, furthermore, if he uses machinery in connection therewith, he is entitled to a lien for the work performed by such machinery. The evidence most favorable to appellee-Bank in the instant case is to the effect that appellant did not use the machinery prior to the signing and posting of the waiver of lien contract. See also: Darling v. Kagan, (Fla. App. 1961), 133 So. 2d 599; Kiene v. Hodge, (1894), 90 Iowa 212, 57 N.W. 717.

Appellant having failed to commence work on the project prior to the signing and posting of the waiver of lien contract precludes his right to claim he was outside the no-lien contract as argued in Point IV.

Appellant's final argument concludes that he should have been compensated for the demolition and clearing the buildings upon the subject premises. The evidence most favorable to the appellees shows that the contract for demolition of the old buildings was performed under a separate agreement and was completed by November 1, 1962. In Dix v. Willfred Co., (1921), 76 Ind. App. 511, at 514, 132 N.E. 595, at 596, this court held as follows:

Point V under appellant's argument is without merit in that the demolition and clearings of buildings upon the subject premises was performed under a prior contract.

It, therefore, follows logically that appellant is not entitled to include work completed under a contract to which the present lien has no bearing.

For the foregoing reasons, the judgment of the trial court should be affirmed.

Judgment affirmed.

Lowdermilk, C.J., and Sullivan, J., concur; Lybrook, J., not participating.

NOTE. Reported in 264 N.E.2d 111.

[1] See: Downey v. Hinchman (1865), 25 Ind. 453.

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PeoplesTrust Bank is a member of the SUM Program, which allows PeoplesTrust Bank customers to use their cards "surcharge free" at more than 2,800 SUM designated ATMs.PeoplesTrust Bank does impose an ATM network fee for transactions at non-PeoplesTrust Bank ATMs except as noted for Premium and Premium Plus Relationship Account customers. Head Office office is located at 1203 Hillsboro Boulevard, Manchester. 800-500-1818. At Peoples Bank & Trust, everything about us is tailored to fit your needs. From checking your balance to transferring money, we make it easy! Call Us: 570-879-2175. We take deposits and make loans back into the neighborhoods where our depositors live and work. The Peoples Bank has not approved this as a reliable partner site. Secure Email Message Center. For credit cards opened after 2/15/2021: go to MyCard­Statement.com to manage your account online. Peoples Bank. Peoples Trust & Savings Bank is located in Grand Junction, IA and can be reached at: 515-738-2312. You can use (515) 386-4848 phone number to contact us. We will send you an official confirmation with your account … File a Claim. Please be advised that you will no longer be subject to, or under the protection of, the privacy and security polices of The Peoples Bank's website. At Peoples Bank & Trust (PB&T), your banking isn’t limited by our standard hours of operation. 800-500-1818. [email protected] So the call is no longer free when dialed from abroad. • View, approve and reject transfers if they are a small business customer. Contact Us. FDIC CERT #: The certificate number assigned to an institution for deposit insurance. Name Peoples Trust Credit Union Address 24333 Lahser Road Southfield, Michigan, 48033 Phone 248-263-4100 Hours Routing Number - 062120001 - Peoples Trust Company. Peoples Bank and Trust was established on Nov. 1, 1898. For example, if the Social Security Number is 123-45-6789, your temporary password will be PuBK6789. Peoples Trust is a CDIC-insured bank based out of Vancouver BC, Canada, … Safety is our top priority at First & Peoples Bank and Trust Company. While we encourage our customers to continue using our Touch Screen Teller machines for contact free transactions, we have opened our branch lobbies for regular business hours. Peoples Trust Federal Credit Union

Peoples Trust and Savings Bank has 4 banking locations. Their corporate headquarters is listed as: 132 South Third Street in Boonville Indiana. Below you will find ratings, reviews, corporate information, directions, office hours, their phone number, and branch locations.

Bank Directions:

Bank Address:peoples trust and savings bank
132 South Third Street
Boonville, Indiana 47601

Bank's Headquarters:

132 South Third Street
Boonville, Indiana 47601

Established:

Tue Jan, 1895

FDIC Insured:

Thu Jan, 1970

Bank Class:

NM - Commercial bank, state charter and Fed nonmember, supervised by the FDIC

Last Structure Change:

27 Jan, 2016

Bank Holding Company:

PEOPLES BANCSHARES CORP

Parent FDIC Cert#:

N/A - Not listed as a child of a larger bank.

Deposits Held Domestically:

$180,872.00

Equity Capital:

$35,363.00

FDIC Supervisory Region:

Chicago

Federal Reserve District:

Chicago

FDIC Field Office:

Indianapolis

Источник: https://findthisbank.com/peoples-trust-and-savings-bank-fdic-13113

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