D. T. Norton Lumber Co. v. Driving Park Ass'n

Ellison, J. This action is to enforce a mechanic’s lien for lumber furnished to defendants, Force & Snider, and used by them as contractors in the construction of an amphitheater for the other defendant, the Driving Park Association. The association paid Force & Snider what was due them as contractors. Judgment below was against the plaintiff, as to the mechanics’ lien, and plaintiff appeals. The association claims, and the evidence sustains the claim, that it refused to pay Force & Snider until the latter had settled their lumber account with the plaintiff. That thereupon Force & Snider said' they would do so and afterwards informed the general manager of the association that they had done so; that they had paid one Sublette, who, the manager knew, [381] was plaintiff’s collecting agent. The general manager asked such agent if the plaintiff’s bill had been paid to him, whereupon he replied that it had, and that he, the manager, would be perfectly safe in paying to Force & Snider whatever was due them. In reliance upon this, the manager thereupon paid Force & Snider what was due them. The payment made to Sublette by Force & Snider was by check, which was afterward dishonored. But the general manager had no knowledge of the payment having been made by a check; at least, there is no evidence tending to show that he had such knowledge. It is clear from the evidence that plaintiff’s agent knew of the claim which Force & Snider had against the association, and that such association was holding payment until Force & Snider settled with plaintiff. Under such circumstances, plaintiff is estopped from now enforcing a lien against the property of the association. But plaintiff contends that Sublette was a mere collecting agent and, as such, had no authority to bind them by the statement which he made to the general manager. We are of the opinion that, considering the relation which these parties bore to one another, and the association’s right to protect itself against a lien by plaintiff, the association had a right to rely upon the statement of the agent that the payment had been made to him. Plaintiff further contends that the association knew when it paid Force & Snider that the latter had paid plaintiff by check, and that payment by check, in absence of a special agreement to that effect, was not a payment, if the check was dishonored. There was evidence which showed that the auditor of the association knew that the payment to plaintiff was by check, but this information was not conveyed to the general manager whose business it was to pay the claim. There [382] was no evidence which tended to show that the auditor’s duties were such as would carry with them authority to charge the association with his knowledge. The mere fact that he was auditor was not sufficient. Upon the whole case we are of the opinion that the jury was properly instructed and that the verdict was for the right party.- It will accordingly be affirmed. All concur.