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C. W. STARK LBR. CO. v. SETHER

No. 47170.

257 N.W.2d 556 (1977)

C. W. STARK LUMBER CO., d. b. a. New Brighton Lumber Co., Inc., Appellant, v. Wayne K. SETHER, et al., Respondents, City-County Credit Union, Respondent. Norman A. DAHLBERG, etc., et al., Defendants, and Wayne K. Sether, et al., third party plaintiffs, Respondents, v. Alene J. HEATON, third party defendant, Respondent, Title Insurance Company, third party defendant, Respondent.

Supreme Court of Minnesota.

Rehearing Denied September 20, 1977.

Attorney(s) appearing for the Case

Kelly & Finley, and James E. Finley, New Brighton, for New Brighton Lumber Co.

Barna, Guzy, Terpstra, Merrill & Giancola and James W. Reuter, Minneapolis, for Sether.

Hansen, Dordell & Bradt, St. Paul, for City-Co. Credit Union and Title Ins. Co.

Williams, Halva & Sullivan, Minneapolis, for Heaton.

Heard before KELLY, YETKA and SCOTT, JJ., and considered and decided by the court en banc.

YETKA, Justice.

This is an action to foreclose a mechanics lien by a materialman who supplied lumber to a construction company, which at the time of the first delivery of materials was the vendor in an unrecorded executory contract for the sale of real property. The construction company used the lumber to construct a house on land which it then sold to the vendees. The construction company failed to pay the materialman, who thereafter sought to foreclose a mechanics...

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