Abbey v. Herzer

Pbentice, J. The contention in this case arises under our statutes regulating mechanics’ liens, and especially that part of § 2 of Chap. 121 of the Public Acts of 1899 which provides that, in determining the amount for which any subcontractor’s liens shall attach upon any land or building, the owner shall be allowed whatever payments he shall have made in good faith to the original contractor or contractors before receiving notice of such lien or liens, and that no payment made in advance of the time stipulated in the original contract shall be considered as made in good faith, unless notice of intention to make such payment shall have been given in writing to each person known to have furnished materials or rendered services, at least five days before such payment is made. It is contended that the payment to the lumber company, in question, is not one which comes within the affirmative portion of these provisions. It is not claimed that Herzer was not obligated by his order to pay this balance to the lumber company. It is not claimed that his payment of it was in actual bad faith. The claim is, that as it was made after he had hotice of the plaintiffs’ liens, it was made at his peril, or rather that he cannot be permitted to credit it as a *496 payment made in good faith to the original contractor upon account of the contract price, thereby reducing the amount unpaid, to the damage of the plaintiffs, who are subcontractor lienors. The plaintiffs’ argument proceeds upon the assumption that the contract between Herzer and the original contractor, Hamilton, which is to be brought under the scrutiny of the statute, is the writing of March 24th. Here is the fundamental fallacy of their contention. Events occurred on March 26th which had a material bearing upon this written agreement. Herzer, upon the solicitation of Hamilton, signed the paper addressed to the lumber company, recited in the statement of facts, and gave the same to Hamilton to deliver to the lumber company. Hamilton made such delivery, and upon the strength thereof the lumber company furnished the materials which were the subject of its demand. This action, thus participated in by both Herzer and Hamilton, accomplished an alteration of the terms of the original agreement. Its provisions for the payment to Hamilton of the contract price became modified, by force of the order requested by Hamilton and signed b}Herzer, to the extent that the undertakings of Herzer in the order created new and inconsistent obligations upon Herzer’s part as to the time and manner of payment. The order was clearly supplemental to the original contract. It was executed to enable that contract to be carried into effect as to its main provisions and purpose. As it was executed upon Hamilton’s solicitation he could not escape its effect. Thereafter, to ascertain the real contract between the parties, the two papers must needs be read together. Together they expressed the contract under which the house was built. This was not only true in so far as the immediate parties were concerned. It was true also as respects these plaintiffs and their rights. When the order was given the plaintiffs were absolute strangers to the matter. None of them had furnished aught of materials or performed a moment’s labor. Herzer and Hamilton alone were the parties in interest, and they had ample power, unrestrained by any legal or equi *497 table considerations or interests, to rescind or alter at will the executory contract between them. They were as free to act as they were two days before, when the original contract was made. This view of the matter makes simple all the problems of the case. When, in September, Herzer paid the lumber company, he was not, as is claimed, making a payment in advance of the time stipulated in the contract, or otherwise than the contract called for. He was rather making a payment in strict conformity with the terms of the contract. Bound irrevocably by an obligation to a third party which was created pursuant to it and cotemporaneous with it, he was simply fulfilling that obligation. The obligation being fixed and having become certain in amount, he was, in satisfying it, simply doing what he was privileged to do at any time at will. Again, the liquidation by Herzer, in September, of his obligation to the lumber company, was not in contemplation of law a payment at that time to Hamilton upon account of the contract price. It was, by relation back to the time when the obligation was incurred, a payment upon the contract price as of that date. At no time after Hamilton abandoned the contract was there any way of escape open to Herzer from paying the balance due the lumber company. His liability' for whatever balance there should prove to be had been fixed upon the execution and delivery of the order. The payment with which the statute deals is by its language made payment to the original contractor. This payment, payment to Hamilton, was, in contemplation of law, under the contract as it existed between the parties thereto, made on March 26th, when the obligation to the lumber company was incurred. Gridley v. Sumner, 43 Conn. 14. The facts disclose no foundation for an application of the principles of estoppel. It is not found that any of the plaintiffs had any knowledge of the terms of the contract between Herzer and Hamilton until after the latter’s abandonment of the contract and after the plaintiffs had ceased to do work or furnish materials. Until that time, when their fears hac\ *498 become aroused, none of them, so far as appears, had made any inquiries upon the subject. That none were made of Herzer is expressly found. The record is significantly silent as to any word or act of Herzer which could by any possibility have influenced any one of the plaintiffs to do what they did. All alike, apparently, blindly assumed that they would get their pay, and acted accordingly. They have only their mistaken confidence to thank for the result. They cannot accuse Herzer of being an inducing cause. There is no error. In this opinion the other judges concurred.