Blethen v. Blake

By the Court, Niles, J.: The plaintiffs sued to enforce a lien upon the building of defendants for an amount due them for materials furnished for the building to Kyte, an original contractor. The contract between Kyte and the defendants was in writing, and is set forth in the transcript. It is averred in the complaint that the building was completed by Kyte, and accepted by the defendants, and that there was due from them to Kyte an amount more than sufficient to pay the plaintiff's’ demand. The defendants, by their answer, deny that the building was completed by Kyte in accordance with the terms of the contract, or that any sum- is due him thereon, and allege specially, as a breach of the contract upon his part, that he failed to procure a certificate from one Macy, the defendants’ architect, stating that materials and labor [120] had been furnished in accordance with the plans and specifications, and that payment was due. There was a substantial conflict in the testimony. Applying the rule, which we have frequently announced, we shall presume in favor of the judgment all material facts upon which evidence was introduced. "We assume, therefore, that the building was completed by Kyte in accordance with ..the terms of the contract, and that it was accepted by the defendants. The further fact that there is due to Kyte from the defendants, upon the contract, a sum more than sufficient to pay the plaintiffs’ demand, is distinctly found by the Court. The clause of the agreement, which required a certificate from the architect, merely provided a method by which the defendants might satisfy themselves that Kyte had fully performed the contract. The provision was for the benefit of the defendants. They could waive it at their option, and receive other proofs of the required fact. That Kyte did complete the building in accordance with the contract is an inference from the judgment itself. The entry of the defendants into the possession and enjoyment of the building is sufficient evidence that they were satisfied of this fact. The production of the certificate would have accomplished nothing more. If it was the purpose of the defendants to claim that the failure of Kyte to show payment of the former bills, or that his sub-contract for materials, without the consent of the defendants, was a breach of his contract with them, they should have made it a part of their defense by proper averments in their answer. Judgment and order affirmed.