Van Court v. Bushnell

Caton, C. J. Unless the note in this case was taken in absolute payment of the debt, it did not discharge the lien. It served but to liquidate the demand, and left the party to ■ seek his satisfaction upon the original contract. The law is the same in this case as it is in any other, where a note has been taken and an action afterwards brought on the original consideration, and the note merely used to show the amount at which the debt had been liquidated. Nor did the fact, that but one of the parties who purchased the lumber and built the house, owned the land, deprive the party of the lien. In our opinion, in such a case the statute creates the lien. It might however be different, if Bailey only joined in the contract as security for the payment of the price of the lumber, and this was understood and known to the creditors. But the fatal difficulty in this case is, a variance between the contract as alleged in the petition, and the one proved on the trial. In the petition, it is alleged, that by the contract the lumber was to be paid for on the first of April,—by the contract, as proved by the witness House, they were to pay for the lumber as they could through the winter, and the balance in the spring. Now the first of April might be a very equitable time for the parties to agree to a settlement under so loose a contract as this, but it is not the time fixed by the terms of the contract for the payment. By the terms of the contract, the creditors could not be legally called on for the money till the expiration of the ensuing spring. Although they had a right to pay at least a part of it before that time, they had also the right to take the whole of the spring to pay the money in. This was a fatal variance. If we take the testimony of Petrie as giving the true terms of the contract, then there was no credit given, and the money was due on delivery of the lumber, and the variance was as fatal as in the other case. There is no evidence showing such a contract as is alleged. The judgment must be reversed and the cause remanded. Judgment reversed.