Justice v. Elwert

Opinion by Mr. Justice Wolverton. 1. The position of appellant is stated by her attorneys in their brief thus: “Upon their face the notices of lien appear to be sufficient, and we presume no authorities are necessary to support the proposition that in order to entitle plaintiffs to enforce their lien for work under their contract they must have performed its conditions on their part to be performed. * ® * We claim that, as a matter of law, plaintiffs are not entitled to any lien, for the reason that they have failed to perform their contract.” And “that if the plaintiffs failed to perform their contract, so as to entitle them to recover, then Beach and Company are not entitled to any lien.” This pertains to the contract and its fulfillment by plaintiffs, considered aside from the said claim for extra materials and labor. The question thus propounded is a mixed one, consisting of both law and fact. The plaintiffs, however, admit that they have not fully performed, but claim that whatsoever has been left undone by them was excused by the acts of Mrs. Elwert. The court below found that she refused to allow or permit plaintiffs to fully comply with the conditions of the contract, which finding appears to be supported by the testimony, although we find much conflict therein. [464] But tbe court having seen the witnesses, heard them testify, and observed their demeanor while upon the stand, its finding ought not to be disturbed, unless clearly against the weight of evidence. 2. The real question, then, comes to this: Gan the lien be maintained without full performance of the contract upon which it is based, -where such performance is prevented by the owner, who is a party to the contract? Regarding this proposition the ü'uthor of Phillips on Mechanics’ Liens, § 188, states tho rule as follows: “It is, however, universally true that no loss of lien is occasioned for the work actually performed in accordance with the contract, when tho work has been stopped or abandoned in consequence of the default of the owner.” To this rule some of the authorities make an apparent exception in the case of nonpayment of installments by the owner, but it is evidently true that, as to this, the contract stipulations may make the payment of such installments conditions precedent, and thus the nonpayment thereof would become a material default upon the part of the owner. But where the owner has by positive acts, as in the case at bar, prevented the full performance upon the part of the contractors, there can be no question but they will have a lien for materials furnished and labor performed, so far as they have in good faith proceeded under the contract. See Howes v. Reliance Wire Works Company, 46 Minn. 47 (48 N. W. 448); Charnley v. Honig, 74 Wis. 163 (42 N. W. 220); Smith v. Norris, 120 Mass. 63, and Merchants’ and Mechanics’ Savings Bank v. Dashiell, 25 Gratt. 625. And this rule also has a like application in excusing the plaintiffs from the necessity of procuring the certificate of the architect or superintendent showing a satisfactory compliance [465] on their part. The court below found that, as far as plaintiffs were permitted, they had substantially performed, and this finding is warranted by tbe testimony. Hence plaintiffs were entitled to their lien for materials furnished and labor performed under the contract, and it follows that Beach is also entitled to his lien. All other findings of fact are in substantial accord with the testimony, and hence the decree of the court will be affirmed. Affirmed