(123 N.E.) "The words 'all persons' * ⚫ would seem to be broad enough to include every individual or corporation that would bring itself within the statute." A contractor has been defined as a person who, in the pursuit of an independent business, undertakes to do specific jobs of work for other persons, without submitting himself to their control with respect to all Watson on Indiana Statutory Liens, § 884, the petty details of the work. Halstead v. says: Dahl, 47 Ind. App. 600, 94 N. E. 1056; Lombard, etc., Co. v. Jones, 187 Ill. 203, 58 N. E. "Person, as used in the statute, includes artificial as well as natural. An individual, a part-347. nership, or a corporation otherwise entitled thereto may acquire the lien. * The word 'person' includes a corporation. That a corporation is entitled to a lien is shown by a number of Indiana decisions." Appellants also contend that the notices of intention to hold liens given by appellees were not sufficient. There is, however, no merit in this contention. Judgment affirmed. (70 Ind. App. 537) In Tennis, etc., Co. v. Wetzel (C. C.) 140 Fed. 193, it was held under the statute of West Virginia which gave a lien to every workman, laborer, or other person who shall do or perform any work or labor that the word "person" included a corporation. See, also, Doane v. Clinton, 2 Utah, 417; Dallas, etc., Co. v. Wasco, etc., Co., 3 Or. 527; Loudon v. Coleman, 59 Ga. 653; Fagan v. Boyle, (Appellate Court of Indiana, Division No. 1. - etc., Co., 65 Tex. 324; Gaskell v. Beard, 58 · Hun, 101, 11 N. Y. Supp. 399. As said by the court in Gaskell v. Beard, supra: "A corporation is as completely within the intention of the section as a natural person would be, and is equally entitled to its protection; for, as a matter of justice, no distinction can possibly exist between the merits of a claim for materials furnished by a corporation and an individual, but each is entitled to be equally supported and each may be fairly presumed to be a person within the intention of the act." Corporations can furnish materials the same as individuals, and we know of no reason why they are not entitled to have a lien for materials furnished the same as an individual. Every reason and argument in favor of giving a natural person such a lien applies with equal force to a corporation. We hold that under the Mechanic's Lien Law of this state a corporation may acquire a lien for materials. [2, 3] The appellants also contend that the appellees in whose favor the liens were foreclosed were not materialmen, for the reason that the materials were furnished by them to the appellee Cox, who, appellants say, was a materialman. In other words, they say that a dealer or materialman who furnishes material to another materialman has no right to a mechanic's lien on the property improved. This is a correct statement of the law. Rudolph Hegener v. Frost, 60 Ind. App. 108, 108 N. E. 16. But in the case at bar the materials were furnished to the appellee Cox, who had the contract to construct the house for which the materials were furnished and in which they were used. Appellee Cox was a general contractor who had no other business than taking contracts for the erection of houses and other similar buildings, and was in no sense a materialman. LAKE MICHIGAN WATER CO. v. UNITED June 18, 1919.) 1. PLEADING 310, 312-CONSTRUCTION-INCORPORATION OF CONTRACT-VARIANCE. The bond sued on being an obligation to carry out a contract, the bond and the contract which includes the plans and specifications must, in considering the complaint, be construed together, and, if the allegations vary from provisions of the contract incorporated, the latter will control. 2. CONTRACTS 284(4)— APPROVAL OR Ac CEPTANCE-CONCLUSIVENESS. Where a contract provides that work shall be done to the satisfaction, approval or acceptance of architect or engineer, such architect or engineer is constituted sole arbitrator by the parties, and they are bound by his decisions in the absence of fraud or such gross mistakes as to imply bad faith, or a failure to exercise an honest judgment. 3. CONTRACTS 284(1)—DECISION OF ABBI TRATOR-CONCLUSIVENESS. A provision in a building contract by which an architect or engineer becomes the arbitrator is more binding than an ordinary submission to arbitration for the reason that it becomes a part of the consideration of the contract. Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge. Action by the Lake Michigan Water Company against the United States Fidelity & Guaranty Company. Judgment that plaintiff take nothing, and defendant recover costs, and plaintiff appeals. Affirmed. See, also, 116 N. E. 744. C. R. & J. B. Collins, of Michigan City, and Anderson, Parker, Crabill & Crumpacker, of South Bend, for appellant. M. J. & J. P. Kenefick, of Michigan City, and McInernys, Yeagley & McVicker, of South Bend, for appellee. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes REMY, J. On June 9, 1908, the Lake Michigan Water Company, appellant herein desiring to improve its water supply system at Michigan City, Ind., entered into a contract with the M. H. McGovern Company, hereinafter called the "contractor," to make such improvement. The United States Fidelity & Guaranty Company, appellee, became surety on said contractor's bond for the faithful performance of the contract. This action is by appellant on said bond. The contractor and said guaranty company were each made defendants, but process was never served upon the former. The complaint was in two para "In case the rate of progress shall be in all respects satisfactory to appellant, monthly estimates will be made of the value of the work fully completed, constructed and in its proper of the estimated value of the work so done durplace, and a voucher for eighty-five per cent. ing the previous month will be issued, the remaining fifteen per cent. to be reserved till the completion and acceptance of the whole work, at which time two thirds of the said fifteen per cent. so reserved shall be paid to the contractor, and the remaining one third retained for sixty days to insure the reconstruction by the contractor of defective work." It is further averred that the contractor graphs, to each of which appellee successful-negligently failed to perform the work in ly demurred for want of sufficient facts. Ap- certain respects in accordance with the terms pellant refused to plead further, and judg- of the contract, and by reason thereof the ment was rendered that appellant take noth-intake pipe was rendered weak, leaky, and ing, and that appellee recover costs. The appeal is from this judgment, and the only errors assigned are based on the rulings of the court on the demurrers to the two paragraphs of complaint. Appellant in its oral argument expressly waived the error, if any, unstable, and admitted sand and gravel into the pumps whereby said intake pipe became the sum of $50,000. were latent, and of such a character that as to the court's ruling on the demurrer to plaintiff did not discover, and in the exercise the second paragraph of complaint, and rest-of reasonable care could not have discovered ed its case on the alleged error of the court until the time of the commencement of this in sustaining appellee's demurrer to the first action, which was approximately five years paragraph. The first paragraph of complaint, herein-work and the payment therefor. The usual after the completion and acceptance of the after denominated the "complaint," is, in clause in contracts of this character, providsubstance, as follows: Appellant on June 9, ing for repair or maintenance for a definite 1908, entered into a written agreement with period after the acceptance of the work, was the M. H. McGovern Company, by the terms omitted from the contract. of which agreement said contractor was to It is contended by appellee, and such was furnish the materials and install in Lake the holding of the trial court, that the comMichigan a crib and intake pipe, in consider-plaint is demurrable for the reason that the ation of $50,000 to be paid by appellant, for facts pleaded show that appellant was bound which amount the contractor was to, and did, at its peril so to inspect the work as it progive a bond to secure the faithful perform-gressed that all improper material or defecance of said agreement, with appellee as tive work would be discovered and rejected surety, which bond is made the basis of the before making final payment 60 days after action. The written agreement of the con- the work was completed, and that, inasmuch tractor, and the plans and specifications for as the work was accepted and payment therethe improvement, are incorporated in the for made, appellee was released as surety. complaint, and provide that the contractor On the other hand, appellant takes the posishall furnish all labor and material, and do tion that under the contract it was not bound all the work in accordance with said plans to discover the latent defects set forth in the and specifications, which, as alleged, had complaint, which defects were not, and could been prepared by appellant's engineer. The not have been, discovered before settlement. plans and specifications, in substance, provide that all materials shall be furnished and labor performed to the satisfaction of said engineer who was employed by appellant to design and supervise the construction of the work; that, in the event of discrepancy between the plans and specifications, the judgment of the engineer shall be final; that any doubt as to the meaning of the specifications shall be explained by the engineer; that any materials or work may be rejected by the engineer at any time before the final acceptance of the work; that the contractor is to afford the engineer proper assistance and facilities for the proper inspection of the work and materials; and that [1-3] The bond sued on is an obligation to carry out the contract, and, in considering the complaint, the bond and the contract, which includes the plans and specifications, must be construed together, and, if any allegations of the complaint vary from the provisions of the contract, the latter will control the pleading. Harrison Bldg., etc., Co. v. Lackey, 149 Ind. 10, 48 N. E. 254; Dunlap v. Eden, 15 Ind. App. 575, 44 N. E. 560. The contractor did not guarantee the materials furnished nor the efficiency of the work when completed. Its contract was to furnish ma terials and do the work according to certain plans and specifications prepared by appellant's engineer. All material was to be in (123 N.E.) knowledge on the part of appellant company add nothing to the pleading, Under the terms of the contract, appellant's engineer was there as appellant's expert to know what was going on, and this expert of appellant was made the judge for both parties. We conclude that the trial court did not err in sustaining appellee's demurrer to the complaint. Judgment affirmed. (70 Ind. App. 490) THOMPSON v. PATTEN et al. (No. 9877.) (Appellate Court of Indiana, Division No. 2. June 17, 1919.) spected, and all work to be supervised, by, [ of the complaint with reference to lack of and to the satisfaction of, such engineer. It is a well-settled rule of law that where a contract provides that work shall be done to the satisfaction, approval, or acceptance of an architect or engineer, such architect or engineer is thereby constituted sole arbitrator by the parties, and the parties are bound by his decisions in the absence of fraud or such gross mistakes as to imply bad faith or a failure to exercise an honest judgment. Cook v. Foley, 152 Fed. 41, 81 C. C. A. 237; Barlow v. United States, 35 Ct. Cl. 514; Williams v. Chicago, etc., R. R. Co., 112 Mo. 463, 20 S. W. 631, 34 Am. St. Rep. 403; Church v. Shanklin, 95 Cal. 626, 30 Pac. 789, 17 L. R. A. 207; Martinsburg, etc., R. Co. v. March, 114 U. S. 549, 5 Sup. Ct. 1035, 29 L. Ed. 255; Kennedy v. Poor, 151 Pa. 472, 25 Atl. 119; Sheffield, etc., Co. v. Gordon, 151 U. S. 285, 14 Sup. Ct. 343, 38 L. Ed. 164; Moore v. Kerr, 65 Cal. 519, 4 Pac. 542; McCoy v. Able, 131 Ind. 417, 30 N. E. 528, 31 N. E. 453. See also Baltimore, etc., R. Co. v. Scholes, 14 Ind. App. 524, 43 N. E. 156, 56 Am. St. Rep. 307. A provision in a building contract by which an architect or engineer becomes the arbitrator is, if anything, more binding than an ordinary submission to arbitration, for the reason that it becomes a part of the consideration of the contract. Williams v. Chicago, etc., R. Co., supra. It has been held that, where the owner and building contractor have agreed that payments shall be made upon estimates furnished by the architect, such estimates have the force of findings between the parties, and are binding on them unless impeached for fraud. Kilgore v. North West, etc., Soc., 89 Tex. 465, 35 S. W. 145. It is very clear that the parties by their contract intended to place the engineer of the water company in charge of the work, and to make it his duty to supervise the construction, to the end that the improvement when completed should be in every particular in accordance with the plans and specifications. Appellee as surety on the bond had no voice in the acceptance or rejection of materials, but had a right to assume that the engineer would do his duty. The bond did not provide that the surety should be responsible for the conduct of the engineer in the exercise of the authority vested in him by virtue of the contract. The work was to be completed in the time specified, and, within 60 days after completion, it was finally accepted, and payment was made therefor. If the work was not in all things as called for by the contract, the fault lay in the poor judgment or breach of duty on the part of the engineer selected by appellant, but who by the contract had become the arbitrator for both parties. It is not charged in the complaint that there was any fraud or mistake on the part of the engineer. The allegations WILLS 647-CONDITIONS "RESTRAINT OF MARRIAGE"-LIMITATION OF ESTATE. A devise to testator's wife to remain her absolute property "as long as she remains my widow" and, in the event she "should remarry, all my property shall go to my children," is not on a condition in "restraint of marriage" within Burns' Ann. St. 1914, § 3123, but the words used amount only to a limitation of the estate devised. [Ed. Note.-For other definitions, see Words and Phrases, Restraint of Marriage.] ty; Appeal from Circuit Court, Monroe Coun- Action by Hannah Thompson against Myrtle Patten and others. Demurrer to complaint sustained, judgment for defendants, and plaintiff appeals. Affirmed. John F. Regester, of Bloomington, for appellant. Edwin Corr, of Bloomington, for appellees. MCMAHAN, J. The appellant commenced this action to quiet her title to certain real estate in Monroe county which was 'owned by John Thompson at the time of his death. lees are the children and consorts of children, The appellant is the widow, and the appelof John Thompson, who died leaving a will, reading as follows: "Item 1. I will, devise and bequeath all of my property real and personal to my wife Hannah Thompson to be and remain her absolute property as long as she remains my widow. "Item 2. In the event my said wife Hannah Thompson should remarry, all of my property shall go to my children, share and share alike." The only question presented for our determination is whether the provisions in the above will amount to a condition in restraint of marriage. If they do, the appellant is the owner of the fee-simple title to the real estate in controversy, and this cause will have to be reversed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Section 3123, Burns' R. S. 1914, provides that "A devise or bequest to a wife, with a condition in restraint of marriage, shall stand, but the condition shall be void." It requires the citation of no authorities to uphold the statement that, where a particular estate has been devised to a wife upon condition that such wife shall not remarry, the condition is void, and the estate devised vests, and the same is held as if it had not been coupled with the condition. It is also just as well settled that a husband may devise to his wife an estate to continue during her widowhood and that he is not obliged to devise to her a larger estate. We have no hesitancy in saying that the provisions of the will now under consideration are not conditions in restraint of marriage, but amount only to a limitation of the estate devised, and we would rest our decision upon this statement without further discussion or citation of authorities were it not for the fact that appellant's counsel, by brief and on oral argument, earnestly insist that the provision relating to the remarriage is a condition and that the appellant became the owner of the real estate in fee. In Hibbits v. Jack, 97 Ind. 570, 49 Am. Rep. 478, the Supreme Court, after an ex "This statement of the distinction between words of limitation and words of condition, of consideration adversely to the views and arguitself, settles the point of contention under ment of appellant's counsel, in the case now before us. The words, 'so long as she remains my widow,' are in the strictest sense words of limitation, and not of condition. Clearly and unequivocally, these words, specify the widowhood of appellant as the utmost time of continuance of the estate devised to her; and they do not mark or indicate any event, the occurrence of which, in the intermediate time, will defeat such estate." (70 Ind. App. 59) NAT. BANK OF INDIANAPOLIS. (No. 9889.) haustive discussion of the meaning of the EARLE et al. v. FLETCHER AMERICAN words "condition" and "limitation" held that a devise of lands to the testator's wife "so long as she shall remain my widow" contains no condition in restraint of marriage, but a mere limitation, and if she marry, or, not marrying, dies, the land goes to the heirs of the testator. In Summit v. Yount, 109 Ind. 506, 9 N. E. 582, the court had before it a will which read as follows: (Appellate Court of Indiana, June 20, 1919.) ACCOMMODA1. BILLS AND NOTES 371 TION PAPER-HOLDERS WITHOUT NOTICE. Where a note and mortgage in fact constituting accommodation paper were pledged as collateral for a debt of the payee therein, recovery by the creditor might be had thereon, "I will and bequeath to my wife, Sarah Rad-notwithstanding a claim by the accommodation cliff, all my estate, both real and personal, so long as she remains my widow. But in case of her again marrying I will to her one-third of all my effects, to hold as her own, and for her sole benefit as she may desire; and in case of said subsequent marriage of my said wife, I devise and will," etc. The court, on page 508 of 109 Ind., on page 583 of 9 N. E., quoted from 4 Kent. Com. 126, as follows: "Words of limitation mark the period which is to determine the estate; but words of condition render the estate liable to be defeated in the intermediate time, if the event expressed in the condition arises before the determination of the estate, or completion of the period described by the limitation. The one specifies the utmost time of continuance, and the other marks some event, which, if it takes place in the course of that time, will defeat the estate." And continuing on page 509 of 109 Ind., on page 583 of 9 N. E., the court said: maker that the collateral did not extend to re- That a note deposited as collateral for a loan constituted noncommercial paper, and is unindorsed, does not charge the creditor with knowledge that the maker is a surety merely. 3. ESTOPPEL 72-INNOCENT PARTIES-ACCOMMODATION Paper-RIGHT OF RECOVERY. Where a mother invested her son with apparent ownership of a note and mortgage, in fact constituting accommodation paper, and the son by depositing such paper as collateral obtained a loan, the lender, on the son's failure to make repayment, could recover on the collateral, since, where one of two innocent persons must suffer by the act of a third, he who put it in the power of the third to act must suffer. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (123 N.E.) Appeal from Circuit Court, Porter Coun-¡ H. Earle to appellant, dated September 25, ,ty; H. H. Loring, Judge. 1914, for a loan to him of $2,000, and due 90 days after date and for no other or difAction by the Fletcher American National ferent purpose, which appellee well knew, Bank of Indianapolis against Effie S. Earle and that said note was taken up at matuand another. Judgment for plaintiff, mo- rity. The third paragraph was a plea of tions to modify the judgment and for a new no consideration. The fourth paragraph adtrial were overruled, and defendants ap-mitted the execution of said note and mortpeal. Affirmed. A. D. Bartholomew, of Valparaiso, and John H. Gillett and Gerald A. Gillett, both of Hammond, for appellants. R. R. Peddicord, of Hobart, and E. D. Crumpacker, Grant Crumpacker, and Owen L. Crumpacker, all of Valparaiso, for appellee. NICHOLS, P. J. This suit was upon a note executed by appellant John H. Earle, and upon a note and mortgage executed by appellant Effie S. Earle, to her coappellant, and claimed by the appellee to be collateral security for the payment of the first-mentioned note. Hereinafter, appellant Effie S. Earle will be mentioned as appellant. Appeliee's amended complaint was in one paragraph, with appellant and said John H. Earle as defendants therein. In substance, it was as follows: gage, but avers: They were executed for the sole purpose and upon the sole condition that the payee might use the same as collateral for a loan to him from appellee of $2,000, to be evidenced by a note therefor, payable in 90 days after its execution. That borrowed said $2,000 from appellee, executpursuant thereto the said John H. Earle ing his note therefor, payable in 90 days after its execution, drawing 8 per cent. interest from maturity, said note being the first-mentioned note in plaintiff's complaint, and with which he deposited appellant's note and mortgage as collateral security, but without any indorsement, and that the same are not transferred or in any manner assigned by said John H. Earle to appellee, and that they were held by appellee as a bare deposit of papers in the original form without any writing, collateral or otherwise, transferring either of them to appellee. When said first-mentioned note fell due, to wit, December 24, 1914, said John H. and appellee entered into an agreement surrendering said note, and, in consideration of such surrender, said John H. executed a new note, in lieu of the former, to January 23, 1915, and appellee extended the time of payment to said January 23, 1915, and accepted interest to said date from said John H. On January 23, 1915, by agreement, said note then maturing was surrendered, and in con On the day of -, 1914, said John H. Earle borrowed of appellee $2,000, executing his note therefor, payable three months after date. At that time he held and owned a note for $2,000, secured by a mortgage on certain real estate, which note and mortgage were executed by appellant, and which he assigned as collateral security to appellee to secure said loan, which said note so assigned is due and wholly unpaid. When the note executed by said John H.sideration of such surrender said John H. Earle became due on January 23, 1915, he renewed it to April 15, 1915, by executing a new note due at said last-named date, which note was not given in payment. To secure its payment he left with appellee the said note and mortgage of appellant. Said renewal note is due and wholly unpaid. Said collateral note and mortgage were as signed by said John H. Earle to appellee by written assignment. A reasonable attorney's fee for the collection of the note of said John H. Earle is $250. executed a new note in lieu thereof due April 15, 1915, and paid the interest thereon to said date; said last-mentioned note against said John H. is the note sued on in appellee's complaint. Appellant executed to said John H. the said note and mortgage as surety only for the first of said notes, and that said note and mortgage were wholly without a consideration, saving only as they were given as an accommodation to enable said John H. to obtain the first of said loans, as evidenced by said ninety-day note. Appellant had no notice or knowledge of either of said agreements between appellee and said John H. for the extension of the time of payment or anything pertaining thereto, and has never given her consent to anything that was so agreed to be done between appellee and said John H., and did not know or consent that her said note or Appellant filed an answer to the amended mortgage should be held as security for complaint in five paragraphs. The first was other than the said first note, if so they a general denial. The second admitted the were, and that said extensions were wholly execution of the note and mortgage, but without appellant's consent, and appellee at averred that they were executed to secure all times knew she was the surety only. the payment of a note executed by said John This paragraph of answer was verified. The said collateral note is noncommercial paper. The assignment thereof is in writing, in which it is provided that the same is as collateral security, and that it is "to include any and all renewals of promissory notes or new promissory notes or other obligations accepted in payment of former obligations." John H. Earle suffered default. |