
    Hersh & Son v. W. L. Carman et al.
    Filed June 3, 1897.
    No. 7350.
    1. Mechanic’s Lieu: Waiver: Note. From the mere acceptance of a note for the amount for which a claim for a mechanic’s lien had been filed it is not necessarily to be inferred that such lien has been waived.
    2. -: Foreclosure: Petition. A petition for the foreclosure of a mechanic’s lien which shows the due filing of a claim for said lien, the taking of a promissory note for the amount thereof, and, in that connection, repudiating such note as having been given and taken under a misapprehension of the effect of accepting it, is not open to attack by a general demurrer.
    Error from the district court of Thayer county. Tried below before Hastings, J.
    
      Reversed.
    
    
      J. B. Skinner, for plaintiff in error.
    
      O. H. Scott, contra.
    
   Ryan, C.

On April 14, 1894, plaintiff filed in the district court of Thayer county a petition for the foreclosure of a mechanic’s lien. A duly verified claim for such a lien had been filed on June 24, 1892. This action was therefore begun within the two years of the filing of the claim for such a lien allowed by statute. On February 6, 1894, the purchaser of the lumber had executed to- plaintiff a promissory note for the amount remaining due, which note, by its terms, was to mature on February 6, 1895. To account for the existence of this note there were in the petition these averments as to its execution: “It was then and there understood and agreed between the defendant and the plaintiff in error that the lien of plaintiff would continue on said premises until the full payment of the said note. Plaintiff entered into such agreement, being mistaken with respect to his own existing private legal rights, and was unaware that the terms of the said contract was in contravention of the continued existence and final enforcement of said lien. He therefore brings said note into court and tenders its surrender and cancellation.” These allegations indicate very clearly that it was the intention of neither the maker nor the payee that the execution of the note should operate to waive the existing mechanic’s lien. On the contrary, these averments showed an intention to perpetuate this lien beyond the time prescribed by law for its dura: tion. There was sustained a general demurrer to this 'petition, and the plaintiff electing to stand on his petition, there was a judgment dismissing his action and for costs. His petition in error presents the correctness of the ruling of the district court in the respect indicated.

In Hoagland v. Lush, 33 Neb., 376, it was held by this court that a mechanic’s lien -is not lost by the taking of the note of the debtor for the balance due' on account, nor in such case, by giving to the latter a receipt in full. In Chapman v. Brewer, 43 Neb., 890, there was approved a proposition laid down in the above case that the acceptance by a material-man of a note and a chattel mortgage as collateral security for materials previously furnished for the erection of a building under a contract with the owner is not a waiver of the lien of the material-man, unless such was the intention of the parties. It was conceded in the case just cited that upon this question there was an irreconcilable conflict in the authorities, but a great many authorities were cited in support of the position taken by this court. It might be that the rights or equities of some of the defendants in this action could be shown to be superior to those of plaintiff, but such question must be presented by answer. The plaintiff sufficiently indicated by his averments that by the taking of the note he did not intend that a waiver of his right to foreclose his existing lien should be inferred, lie duly tendered in court the note to be destroyed and disavowed all claims of right under it. Having repudiated all rights by virtue of this note, plaintiff made such averments as were necessary to entitle him to the foreclosure of his lien and accordingly prayed judgment. A petition of this form and substance was not open to a general demurrer. The judgment of the district court is therefore reversed and this cause is remanded for further proceedings not inconsistent with the views above expressed.

Reversed and remanded.  